COURT FILE NO.: 02-FL-2665-C4
DATE: 2012-09-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Suzette Carrie Robertson, Applicant
AND
Mark Noel Quinn, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Michael Rappaport, for the Applicant
Robie S. Loomer, for the Respondent
HEARD: September 13, 2012
ENDORSEMENT
[ 1 ] The Applicant has brought a motion to amend her pleadings, for questioning of the Respondent before trial, and for further disclosure. Success with respect to any of these issues would result in the adjournment of the trial that is set to be heard in next month’s sittings, as early as two weeks from now.
Basic Facts
[ 2 ] On August 12, 2011, a Motion to Change was commenced by Ms. Robertson acting for herself. In it she seeks a variation of the Consent Order of Kershman J. dated March 23, 2010, by increasing the amount of child support effective May 2010. Ms. Robertson had counsel when that Consent Order was made.
[ 3 ] The parties had a case conference on October 19, 2011, which resulted in various disclosure orders.
[ 4 ] On February 2, 2012, a settlement conference was held. It needs to be noted that the Court has the same powers to order disclosure and questioning at a settlement conference as it has at a case conference. It is not disputed that at the settlement conference the Applicant sought the same disclosure and questioning she seeks in the current motion. The endorsement from the conference only set the application down for trial on oral evidence for the October 2012 sittings.
[ 5 ] Just over a week after the settlement conference the Applicant served a Request for Information pursuant to sub-rule 20(3) of the Family Court Rules . That was the wrong procedure, only available in child protection cases. The rules are clear that a motion was needed.
[ 6 ] On June 6, 2012, the Applicant, previously acting on her own, retained her present counsel.
[ 7 ] At the assignment court on August 24, 2012, the Court noted that this motion was going forward and indicated that “It will also include the motion to amend.”
[ 8 ] This Notice of Motion is dated and was served on September 4, 2012. The Respondent indicates this is the first time he has seen the amendment request. No further detail, such as a draft amended application, was provided. Regarding disclosure, although information from a non-party (the Respondent’s partner) is requested, it does not appear that she was served.
Law
[ 9 ] The consequences of setting a matter down for trial are not set out in the Family Court Rules but are covered in the Rules of Civil Procedure . Rule 1(7) of the Family Court Rules allows this Court to adopt a practice by reference to the Rules of Civil Procedure . This was done in the case of Smith v. Smith , [2000] O.J. No. 4563 (S.C.J.) .
[ 10 ] Rule 48.04 of the Rules of Civil Procedure states:
48.04(1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.
[ 11 ] Having looked the authorities provided to me in this case as well as the decisions in Tanner v. Clark , [1999] O.J No. 581 (Gen.Div.) , and Canadian Gasket & Supply Inc. v. Industrial Gasket & Shim Co ., [2009] O.J. No. 3913 (S.C.J.) , I am of the view that there are two tests under that rule for granting leave, namely the traditional test of substantial and unexpected change in circumstances regarding procedural and interlocutory matters, and a merits/prejudice test for matters affecting substantive rights.
[ 12 ] MacKinnon J. in Smith v. Smith, supra, looked at Rule 48.04 in light of the objectives of the Family Court Rules and the Court’s duty to fulfill them, and in paragraphs 9 and 10 noted the following:
9 … the combined effect of these Rules supports the proposition that, in general, motions should not take place after a settlement conference or placement of a case on a trial list. …
10 The circumstances in which the court would entertain a motion after a settlement conference or after the case is on the trial list will be exceptional.
Analysis
[ 13 ] The requests in the Notice of Motion for productions and questioning are forms of discovery and therefore procedural matters. There is no substantial or unexpected change of circumstances being alleged regarding them other than that the Applicant retained counsel on June 6, 2012, and no motion was brought when or shortly after that occurred. We are now on the eve of trial. The Respondent indicates that he is ready for trial and indeed points to a substantial document brief that has been served. In weighing whether a refusal to grant leave would be unjust the Court needs to consider all the factors including, per sub-rule 2(3)(a) of the Family Court Rules , ensuring that the procedure is also fair to the Respondent.
[ 14 ] The request to amend the pleadings is a substantive request. It would change the whole nature of this proceeding. The conferences and disclosure to date have not addressed the new claim. Tanner v. Clark , supra , and Canadian Gasket & Supply Inc. v. Industrial Gasket & Shim Co ., supra , focused on whether the substantive relief sought would substantially shorten the trial or otherwise result in significant costs savings to the parties. This request has the opposite effect. The issues in the case as it stands are small compared to what they would be if the amendment were granted. The amendment would be like a new application necessitating procedural steps that could take as long again to work through as the process thus far – another year – before the parties get to trial.
Decision
[ 15 ] For the reasons set out above the motion is dismissed.
[ 16 ] With the trial pending, I would simply note that the Respondent has had complete success on this motion and reserve costs to the trial judge.
Mr. Justice Timothy Minnema
Date: September 18, 2012
COURT FILE NO.: 02-FL-2665-C4
DATE: 2012-09-18
ONTARIO SUPERIOR COURT OF JUSTICE RE: Suzette Carrie Robertson, Applicant AND Mark Noel Quinn, Respondent BEFORE: Mr. Justice Timothy Minnema COUNSEL: Michael Rappaport, for the Applicant Robie S. Loomer, for the Respondent ENDORSEMENT Mr. Justice Timothy Minnema
Released: September 18, 2012