SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 617/11
Date: April 11, 2012

RE: MARGARET PEGGY CRUICKSHANK, Applicant

• and –

STEVEN CRUICKSHANK, Respondent

BEFORE: JUSTICE BRIAN W. ABRAMS

HEARD: APRIL 10, 2012

COUNSEL:
MS. MARTHA A. McCARTHY, for the Applicant
MR. HAROLD NIMAN, for the Respondent

Neither counsel appearing on this without notice motion. Determined on the written material filed as a procedural motion.

ENDORSEMENT ON MOTION WITHOUT NOTICE

Background

[ 1 ] The parties separated on October 26, 2008.

[ 2 ] The parties lived separate and apart under the same roof in the matrimonial home at 4 Author’s Lane, Kingston, following separation.

[ 3 ] During the summer of 2009 the parties rotated in and out of the matrimonial home while they both cared for the children.

[ 4 ] On August 21, 2009, Mr. Cruickshank moved to the parties’ second home located at 92 Easy Lane Road, Wolfe Island.

[ 5 ] On December 6, 2011, Mr. Cruickshank disclosed copies of email messages in his possession between Ms. Cruickshank and her friend, Jenica. In that respect, paragraph 12 of Ms. Cruickshank’s Affidavit deposes: “I briefly flipped through the emails and saw that they were between me and my friend Jenica. I saw that some of the emails predated our October 2008 separation and some were after our October 2008 separation. Steve told me had (sic) videotapes of me, cameras all over my house and that he had photos of me.”

[ 6 ] Notably, there is an absence of evidence in Ms. Cruickshank’s Affidavit of captured emails, videos, photos or surveillance that post-dates Mr. Cruickshank’s departure from the matrimonial home on August 21, 2009. That is to say, there is no evidence of any ongoing, unauthorized surveillance of Ms. Cruickshank following Mr. Cruickshank’s departure from the matrimonial home.

Urgency

[ 7 ] A motion may be made without notice if, inter alia :

(c) “…there is an immediate danger to the health or safety…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.” [1]

[ 8 ] Following disclosure of the email messages in December, 2011, Ms. Cruickshank caused her counsel to write to counsel for Mr. Cruickshank on December 9, 2011, requesting full particulars of any photographs, emails and video and audio recordings relating to Ms. Cruickshank between August, 2008 and December, 2011. A second request was sent under cover, dated January 11, 2012. A third request was sent under cover, dated January 31, 2012. A fourth request was sent under cover, dated February 10, 2012. Finally, a fifth request was sent under cover, dated March 12, 2012. Ms. Cruickshank deposes that no response was ever received by her counsel in response to these five requests for document disclosure. Further, of particular concern to Ms. Cruickshank was whether all cameras in the home and any recording devices in her home telephone, cell phone and computer had been removed. And if so, the date when they were removed.

[ 9 ] When no response was apparently forthcoming, Ms. Cruickshank made a complaint to the Kingston Police. Further, Ms. Cruickshank retained the services of Integra Investigation Service to conduct a “sweep” of the home including the land line, internet service, computers, her vehicle and the interior and exterior of the home for video surveillance equipment. The inspection resulted in no “unauthorized devices” being located, which is confirmed in the report attached as Exhibit “E” to Ms. Cruickshank’s Affidavit.

[ 10 ] Ms. Cruickshank’s complaint to the Kingston Police has been assigned to Constable Nadene LeGare. In paragraph 22 of Ms. Cruickshank’s Affidavit, she deposes that Constable LeGare will be questioning Mr. Cruickshank about the devices found in the home. There is no indication as to when this will happen, or whether it has already happened.

Health, Safety and Serious Consequences

[ 11 ] The Affidavit, as framed, including the exhibits appended thereto, does not support a finding that:

(1) there is an immediate danger to the health or safety of Ms. Cruickshank and that the delay involved in serving the Notice of Motion would probably have serious consequences; or

(2) that if the Notice of Motion was served, it would probably result in serious consequences to Ms. Cruickshank.

Rather, the report from Integra Investigation Services Ltd. (Exhibit “E”) confirms that Ms. Cruickshank’s home, computers and vehicle are free of any unauthorized devices. Accordingly, to the extent that there was any concern regarding ongoing, unauthorized surveillance in the home that could give rise to health or safety concerns related to Ms. Cruickshank, those concerns have been addressed by the investigation and subsequent report.

Preservation of Evidence

[ 12 ] The cat was let out of the bag by Mr. Cruickshank when he made the oral disclosure to Ms. Cruickshank in December, 2011, regarding the captured email messages, photos and surreptitious video equipment installed in the home. After a four month delay during which counsel for Ms. Cruickshank received no response to five letters requesting document disclosure, an urgent, ex parte motion at this juncture appears somewhat stale. Moreover, if an ex parte Order of this Court could ever have had the benefit of “surprise” in ensuring that evidence would not be disposed of, in all probability any benefit was lost following the involvement of the Kingston Police. Put simply, Mr. Cruickshank has been put on notice that he is under investigation.

Relevance

[ 13 ] A further consideration is the relevance, if any, that surveillance evidence could afford Mr. Cruickshank in the circumstances as pleaded. There is a bare pleading set out in paragraph 16 of Mr. Cruickshank’s Answer that the relationship ended when Mr. Cruickshank discovered that Ms. Cruickshank was involved in a relationship with another woman. Further, Mr. Cruickshank believes that the relationship has continued following the separation. Finally, Mr. Cruickshank asserts that the children are not fully aware of this situation and he is concerned that the children will find out about the relationship from third parties, rather than from their parents.

[ 14 ] However, paragraph 16, standing alone, appears to be disconnected with any claim being made by Mr. Cruickshank. To use one example, in paragraph 3 of her Application, Ms. Cruickshank is asking the Court to make an Order that the parties share joint custody of the children. On page 12 of his Answer, Mr. Cruickshank asks that the Court effectively make the same Order. Apart from the issue of custody, which doesn’t appear to be contested, one has to wonder what possible relevance Ms. Cruickshank’s conduct could have in relation to the issues raised in the pleadings.

Dealing with Cases Justly and Document Disclosure

[ 15 ] Rule 2(2) of the Family Law Rules sets out the primary objective of the Rules: to enable the court to deal with cases justly. Rule 2(3) provides that dealing with cases justly includes, inter alia :

(a) “ensuring that the procedure is fair to all parties;

(b) saving expense and time…”

[ 16 ] Rule 2(4) provides that the Court is required to apply these Rules to promote the primary objective, and the parties and their lawyers are required to help the court to promote the primary objective. (emphasis added)

[ 17 ] Rule 2(5) provides that the Court shall promote the primary objective by active management of cases, which includes, inter alia :

(a) “at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial…

(c) helping the parties to settle all or part of the case…

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to Court, on the basis of written documents…”

[ 18 ] In my view, the failure to respond to five written requests for document disclosure related to surveillance evidence, as set out collectively in exhibits “B” and “C” to Ms. Cruickshank’s Affidavit, falls below the standard set out in Rule 2(4) requiring parties and their lawyers to help the Court to promote the primary objective.

[ 19 ] The Case Conference in this matter is scheduled for May 24, 2012. At very least, by that date the Court, the parties and their counsel should be in a position to identify the issues, and separate and dispose of those issues that do not need full investigation and trial. Accordingly, if Mr. Cruickshank intends to raise Ms. Cruickshank’s conduct as an issue, he should do so in a straightforward manner and do so in advance of the Case Conference. Further, if it was ever Mr. Cruickshank’s intention to surprise Ms. Cruickshank with surveillance evidence, and I am not suggesting at this juncture that it was, the Rules of this Court do not favour such strategies.

[ 20 ] Meaningful Case Conferences are premised on the disclosure of all relevant evidence. To speak plainly, Ms. Cruickshank should know in advance the case that she has to meet. To that end, Rule 19 pertains to document disclosure, where it says:

“…every party shall, within 10 days after another party’s request, give the other party an Affidavit listing every document that is,

(a) relevant to any issue in the case;

(b) in the party’s control, or available to the party on request.”

[ 21 ] Rule 2(1) defines “document” to mean information, sound or images recorded by any method.

[ 22 ] In effect, beginning on December 9, 2011, Ms. Cruickshank caused her counsel to make five separate requests for document disclosure, “document” meaning all surveillance evidence including photographs, emails and video and audio recordings relating to Ms. Cruickshank between August 2008 and December, 2011. All five requests went unanswered, which I find necessitated this motion being brought. Accordingly, while the Motion does not meet the urgency threshold set out in Rule 14(12), it does meet the procedural threshold set out in Rule 14(10) and Rule 14(6) (e.2).

ORDER

[ 23 ] (1) The applicant is hereby granted leave to bring this motion in advance of a case conference for procedural matters.

(2) The Respondent shall, within 10 days, provide the Applicant with a sworn Affidavit of documents listing every document that is relevant to any issue in the case and in the Respondent’s control, or available to the Respondent, on request, including but not limited to: All forms of recordings, sound or images recorded by any method, made in relation to the Applicant, from August 1, 2008 to the present;

(3) The Respondent shall cause to be preserved for delivery and inspection any and all computers or devices on which any form of recordings, sound or images recorded by any method may be stored, made in relation to the Applicant, from August 1, 2008 to the present.

(4) The Applicant shall forthwith serve this Order and her motion form (Without Notice) for this motion and her Affidavit sworn April 7, 2012, together with all exhibits on the Respondent by providing copies to his solicitor of record, Niman, Zemans Gelgoot, LLP.

(5) The motion is returnable April 25, 2012 at 10:00 a.m. or such other mutually convenient date, to be agreed between counsel and in consultation with the trial co-ordinator; and

(6) Costs of this motion shall be determined at the return of the motion.

April 11, 2012 ______________________________
Abrams, J.

[1] Rule 14(12) Family Law Rules