COURT FILE NO.: FS-11-373730
DATE: March 1, 2012
SUPERIOR COURT OF JUSTICE – ONTARIO
APPLICANT: Robin Dawn MacLean
RESPONDENT: David James Hawkey
BEFORE: Mr. Justice Perkins
LAWYERS:
Edwin A Flak, for the applicant wife
Diane E. Klukach, for the respondent husband
HEARD: March 1, 2012 (motion in writing)
ENDORSEMENT
[ 1 ] I have taken the unusual step of writing a decision on this “basket” motion seeking a consent order because the motion evidences the common practice, at least in Toronto, of seeking an order at or after a case conference to permit questioning and the bringing of motions. It is my view the order sought is not necessary.
[ 2 ] This motion arises in an application between parties who do not have children. The applicant wife seeks a divorce and the usual relief relating to property and spousal support. She has also claimed a restraining order to prevent harassment. In his answer, the respondent husband has sought orders relating to property and has defended the spousal support claim of the wife. He has also claimed a restraining order against the wife.
[ 3 ] On January 20, the parties and their lawyers appeared before me at a case conference. We discussed the issues of substance, including sale of various properties, support, disclosure and costs. I offered the parties and their lawyers some views on the issues. The case conference was completed.
[ 4 ] On February 21, the parties filed a consent, dated January 20 and signed by both parties and their lawyers, to an order that each party may question the other and may bring motions.
[ 5 ] Below are the provisions of the Family Law Rules governing the situation here.
RULE 13: FINANCIAL STATEMENTS
FINANCIAL STATEMENT WITH APPLICATION, ANSWER OR MOTION
- (1) If an application, answer or motion contains a claim for support, a property claim, or a claim for exclusive possession of the matrimonial home and its contents,
(a) the party making the claim shall serve and file a financial statement (Form 13 or 13.1) with the document that contains the claim; and
(b) the party against whom the claim is made shall serve and file a financial statement within the time for serving and filing an answer, reply or affidavit or other document responding to the motion, whether the party is serving an answer, reply or affidavit or other document responding to the motion or not. O. Reg. 92/03, s. 1 (1); O. Reg. 151/08, s. 2 (1, 2).
ADDITIONAL FINANCIAL INFORMATION
(11) If a party believes that another party’s financial statement does not contain enough information for a full understanding of the other party’s financial circumstances,
(a) the party shall ask the other party to give the necessary additional information; and
(b) if the other party does not give it within seven days, the court may, on motion, order the other party to give the information or to serve and file a new financial statement. O. Reg. 114/99, r. 13 (11) .
QUESTIONING ON FINANCIAL STATEMENT
(13) A party may be questioned under rule 20 on a financial statement provided under this rule, but only after a request for information has been made under clause (11) (a). O. Reg. 114/99, r. 13 (13) .
RULE 14: MOTIONS FOR TEMPORARY ORDERS
NO MOTION BEFORE CASE CONFERENCE ON SUBSTANTIVE ISSUES COMPLETED
(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed. O. Reg. 89/04, s. 6 (3); O. Reg. 383/11, s. 3 (1).
RULE 20: QUESTIONING A WITNESS AND DISCLOSURE
OTHER CASES — CONSENT OR ORDER
(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,
(a) with the other party’s consent; or
(b) by an order under subrule (5). O. Reg. 114/99, r. 20 (4) .
ORDER FOR QUESTIONING OR DISCLOSURE
(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
The information is not easily available by any other method.
The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5) .
[ 6 ] Rule 13 (13) allows the parties to question each other on their financial statements “under rule 20”. It is my view that the quoted words mean “in accordance with the procedures set out in rule 20”, not that a party must have consent from the other or seek an order under rule 20 (5) . If rule 13 (13) meant that, it would not have been necessary to say anything at all – the phrase “under rule 20” adds nothing to rule 20 (4) and (5) . The process for gaining entitlement to questioning on a financial statement established by rule 13 (13) is different from, and much easier than, the test in rule 20 (5) . The words were necessary to incorporate the rule 20 procedures because a standard different from that established by rule 20 was being created in rule 13 (13). I am also aware, from being a member of the Family Rules Committee at the time, that the committee’s discussions when rule 13 (13) was passed proceeded on the express premise that rule 13 (13) was its own, self contained provision governing entitlement to questioning on financial statements. Regrettably there is no public legislative history of the development of the rules. It might have been helpful for rule 20 (4) to have had an additional clause mentioning rule 13 (13), but in my view that was and is not necessary.
[ 7 ] Rule 14 (4) is a prohibition on the service or hearing of a motion until the completion of a case conference. Once the case conference is completed, the rules do not say anywhere that an order is required before a motion may be brought. It is my usual practice to note in my endorsement on the record after a case conference just what issues have been discussed, so that it is immediately apparent that there has been a “conference dealing with the substantive issues in the case”. If the case conference has not been completed, my endorsement says so expressly.
[ 8 ] Finally, I note that the parties and lawyers have signed a consent to questioning and bringing motions. A consent is of no help on the issue of whether a motion may be brought. But the consent would, under rule 20 (4) (a), be a complete answer to any objection to questioning and would only have to be put before the court if a party sought to avoid being questioned.
[ 9 ] For these reasons, the order sought is refused as being unnecessary.
Perkins J.
Date: March 1, 2012