COURT FILE AND PARTIES

COURT FILE NO.: FC-09-2751-2

DATE: 20131220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Véronique Dhieux, Plaintiff

AND

Michael Potter, Respondent

BEFORE: Blishen J.

COUNSEL:
Caroline E. Kelly and John N. Pepper, for the Applicant

Carol A. Crawford, for the Respondent

HEARD: September 10, 2013

ENDORSEMENT

Introduction

[1] This motion is brought by the applicant, Véronique Dhieux, to strike out 14 paragraphs of the Amended Answer of the respondent, Michael Potter, in the context of an action regarding certain aspects of the custodial arrangement with respect to the parties’ 10 year old child, Lilli-Angelique Potter Dhieux (“Lilli”). The applicant argues the impugned paragraphs should be struck on the following grounds:

1. they are pleadings of fact which are not material;
2. they plead evidence;
3. they may delay the trial of the action as they raise collateral issues not pertinent to the substantive issues between the parties; and
4. they are prejudicial to the fair trial of the action as they have no purpose other than to cast the applicant in an unfavorable light; and
5. they are inflammatory and scandalous.

[2] The respondent argues the applicant’s Amended Application includes a series of allegations against him which seek to impugn his character and parenting abilities as well as the nature of the parties’ relationship and their previous litigation. The respondent denies the allegations made by the applicant and argues he is entitled to make a full defence by pleading material facts that support his denials.

Background

[3] The parties were married on July 9, 2003. It was a second marriage for both. They separated in January 2009.

[4] The parties have shared joint custody of 10 year old Lilli (born March 10, 2003) since seperation, and she has resided with each of them on an equal time basis.

[5] Lilli has two sisters, Michaela and Tennyson, now 14 and 16 years old, from the respondent’s previous marriage. Mr. Potter has sole custody of his two older daughters who reside with him.

[6] The parties signed a final Joint Parenting Agreement effective March 19, 2009, confirming their joint custody of Lilli and the regular equal care schedule for her. They subsequently signed Minutes of Settlement effective February 16, 2011 confirming the Joint Parenting Agreement and providing a holiday schedule for Lilli up to and including September 2, 2011.

[7] Although the parties’ Joint Parenting Agreement required them to make important decisions about Lilli’s welfare jointly, including decisions about her education, there was a disagreement as to the appropriate school for Lilli to attend in Grade One. Mr. Potter argued Lilli should attend Elmwood School with her sisters whereas Ms. Dhieux wished the child to remain at Lycée Claudel. This issue proceeded to trial in June 2012. On August 2, 2012, Justice Kershman found it was in Lilli’s best interests to be registered and attend Elmwood School commencing September 2012.

[8] In the fall of 2012, the parties began to negotiate a holiday schedule for Lilli. The schedule was not resolved and Ms. Dhieux issued an application on December 21, 2012 seeking temporary and final orders defining the holiday schedule.

[9] In his Answer filed in February 2013, Mr. Potter included a proposal for a holiday schedule. In addition, he sought a number of orders restraining Ms. Dhieux from: harassing him; making disparaging remarks about him to Lilli; interfering with Lilli’s relationship with him and involving Lilli in disputes between the parties. The respondent also requested orders limiting Ms. Dhieux’ communication with Lilli to one telephone call per day and requiring that communication from Ms. Dhieux to him be restricted to an exchange of information about Lilli.

[10] On April 4, 2013, Justice Minnema provided the parties with leave to amend their pleadings.

[11] The applicant filed her Amended Application on April 4, 2013 requesting a number of new orders including:

1. the parties attend counselling;
2. there be no make-up time for missed visits;
3. appropriate arrangements for Lilli’s travel be defined;
4. Dr. Erwin Butkowski be appointed to assess and report to the Court on Lilli’s needs and the ability and willingness of each parent to satisfy those needs; and
5. that any restraining or communication orders granted by the Court be mutual.

[12] In addition, the Amended Application sought an order that Ms. Dhieux be granted final decision making authority about major issues affecting Lilli’s welfare in the event the other orders requested were not granted or were deemed insufficient to improve the parties’ parenting relationship.

[13] To support her additional claims, the applicant raised a number of new allegations against the respondent under the headings: “The History of an Unequal Partnership” and “Climate of Negativity and Conflict”.

[14] The respondent filed his Amended Answer on April 30, 2013 adding 103 paragraphs to his pleading. He added a claim for orders regarding a change in Lilli’s name from Lilli-Angelique Potter Dhieux to Lilli-Angelique Potter-Dhieux.

[15] The impugned pleadings must be considered in light of the substantive issues currently before the Court.

[16] There is no dispute in the pleadings before the Court that Lilli should continue to spend equal time with each of her parents both during the school year and during holidays and long weekends.

[17] The substantive issues deal with:

1. Lilli’s holiday schedule;
2. make-up time;
3. travel arrangements;
4. communication orders as outlined above and whether they should be reciprocal;
5. counselling;
6. an assessment by Dr. Butkowski;
7. the respondent’s request to change Lilli’s name to Potter-Dhieux; and
8. if all else fails, Ms. Dhieux’ request to have final decision making authority.

Law

[18] This motion to strike part of the Amended Answer of the respondent is brought pursuant to Rule 14(22) of the Family Law Rules, O. Reg. 114/99 which provides that:

14(22) The court may, on motion, 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. O. Reg. 114/99, r. 14 (22).

[19] It is important to consider Rule 2 of the Family Law Rules which sets out the objectives of the Rules as follows:

2(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

(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. O. Reg. 114/99, r. 2 (3).

(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. O. Reg. 114/99, r. 2 (4).

(5) The court shall promote the primary objective by active management of cases, which includes,

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

[20] In promoting the primary objective of the Rules, to deal with a case justly, the Court is required to actively manage cases which include: ensuring fairness, saving expenses and time, dealing with a case in a way appropriate to its importance and complexity, and to consider resource issues.

[21] It is within this general framework that a motion to strike all or part of a parties’ pleadings must be considered.

[22] The Court must adhere to the Family Law Rules in dealing with family matters as opposed to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Nevertheless, as the two sets of Rules contain similar objectives, reference to the Rules of Civil Procedure may be useful and can provide a base of caselaw useful as a reference: see Boisvert v. Boisvert, 2006 23145 (ON SC), 40 R.F.L. (6th) 137 (Ont. Sup. Ct.).

[23] Although the jurisprudence developed under the Rules of Civil Procedure may be of assistance, the Family Law Rules are not simply a plain language version of the Civil Rules. They must be given the interpretation necessary to effect the objectives outlined under Rule 2 of providing efficient and expeditious justice tailored to the unique needs of family litigation: see Williams v. Williams, 2010 ONSC 2636, 82 R.F.L. (6th) 448.

[24] The relevant Rules of Civil Procedure on this motion are Rule 25.06(1) and Rule 25.11.

[25] Rule 25.06(1) provides that:

25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R.R.O. 1990, Reg. 194, r. 25.06 (1).

[26] Rule 25.11 states:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court. R.R.O. 1990, Reg. 194, r. 25.11.

[27] Pleadings are to contain material facts relevant to the claim or defence, facts that establish the constituent elements of the claim or defence.

[28] In Duryea v. Kaufman (1910), 21. O.L.R. 165 (H.C.J.), Riddell J. stated at page 168:

...The pleadings must disclose what is to be tried[;] every pleader is at liberty to allege any fact which would be allowed to be proved, but only such facts...

[29] In Brydon v. Brydon, [1951] O.W.N. 369 (C.A.), the Ontario Court of Appeal notes at para. 14:

14. The test is not whether the fact is a major or a minor fact or a chief or an ancillary one, but rather whether the fact pleaded is relevant to the trial of the issue. As further stated by Riddell J. in the same case, citing Rock v. Purssell (1887), 84 L.T. Jo. 45: “Anything which can have any effect at all in determining the rights of the parties can be proved, and consequently can be pleaded – but the Court will not allow any fact to be alleged which is wholly immaterial and can have no effect upon the result”.

[30] In Canadian National Railway Co. v. Brant et al (2009), 2009 32911 (ON SC), 96 O.R. (3d) 734 (Ont. Sup. Ct.), Strathy J. considered the plaintiff’s motion to strike portions of the defendant’s Counterclaim pursuant to Rule 25.11 of the Rules of Civil Procedure. The relevant considerations were outlined by the Court at paras. 28 to 30 as follows:

28 A pleading of fact will be struck if it cannot be the basis of a claim or a defence in the action and is designed solely for the purpose of atmosphere: Wilson v. Wilson, [1948] O.J. No. 62 (H.C.J.). If the only purpose of the pleading is to cast the opposing party in a bad light, it will be struck. Pleadings of historical facts, whether those facts are true or not, that have no relevance to the proceeding, will also be struck: see, for example, Davis v. Canada (Attorney General), above; Desjarlais v. Canada, 2002 FCT 973, [2002] F.C.J. No. 1272, 224 F.T.R. 37 (T.D.).

29 One of the reasons for this rule is that the pleadings define the issues in the action. If a party is required to respond to irrelevant facts, inquire into those facts on discovery and respond to evidence of those facts at trial, the litigation and trial will be diverted by inquiries into facts that have no connection to the real issue before the court. [page745]

30 Even where the allegations of fact are marginally relevant, the court has the jurisdiction to strike the pleading if their probative value is outweighed by their prejudicial effect. This is a jurisdiction that is to be exercised with considerable caution: Quizno's Canada Restaurant Corp. v. Kileel Developments Ltd. (2008), 2008 ONCA 644, 92 O.R. (3d) 347, [2008] O.J. No. 3674 (C.A.).

[31] In Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., 2008 ONCA 644, 92 O.R. (3d) 347, the Court states at para. 16:

16 Pleadings are not the appropriate stage in an action to engage at large in what is essentially a trial judge's exercise for determining the admissibility of evidence at trial - i.e., weighing the probative value versus prejudice of facts. That exercise is not particularly well-suited to defining issues for trial, something which is for the parties to decide. Rule 25.11 provides that the pleading may be struck if it "may prejudice the fair trial of the action." A fair trial requires that the defendant be able to put forward a "full" defence, not - as the motion judge erroneously concluded - a "reasonable" defence defined in advance by the plaintiff and the court.

[32] Rule 25.06(1) of the Rules of Civil Procedure requires that pleadings contain a concise statement of the material facts on which the party relies but not “the evidence by which these claims may be proved.” As stated by Perell, Paul M. and Morden, John W., in The Law of Civil Procedure in Ontario, 1st ed. (Canada: LexisNexis Canada Inc., 2010) at page 345:

A pleading should not describe the evidence that will prove a material fact. Pleadings of evidence may be struck out[^1]. The difference between pleading material facts and pleading evidence is a difference in degree and not of kind. What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of material facts[^2]. The classification of a fact as a material fact or as evidence will depend upon the circumstances of the case.

Analysis

[33] This motion is brought pursuant to Rule 14(22) of the Family Law Rules within the context of a dispute regarding certain aspects of the parenting arrangements for 10 year old Lilli Potter Dhieux.

[34] The Family Law Rules are to be applied with the objective of providing efficient, expeditious and cost effective justice tailored to the unique needs of family litigation: see Children’s Aid Society of Toronto v. S.B. (2002), 2002 78099 (ON CJ), 27 R.F.L. (5th) 299 (Ont. C.J.) and Williams v. Williams, supra.

[35] There is no place in pleadings for inflammatory claims designed solely for atmospherics, to cast the opposing party in a bad light or to “poison the well”, particularly when the facts alleged are remote in time and of little relevance to the issues before the Court which, in this case, have arisen long after the separation of the parties in 2009 and the signing of the Joint Parenting Agreement on June 18, 2010. That Parenting Agreement provided for joint custody and equal time sharing. At this time, neither party disputes a continuation of equal time sharing. The applicant has raised the issue of joint decision making and requests, if all else fails, that final decision making rest with her.

[36] The impugned paragraphs of the Amended Answer can be grouped in three themes:

1. the nature of the parties’ relationship;
2. Ms. Dhieux’ family; and
3. previous litigation.

The Nature of the Parties’ Relationship

[37] The applicant challenges paragraphs 80 to 83 and 92 of the Amended Answer. Paragraph 79 is not challenged. Those paragraphs state:

79. At paragraph 40, the Applicant alleges the parties’ relationship was never equal because the Applicant is younger than the Respondent, was an immigrant and was not successful when she met the Respondent. The descriptions plead by the Applicant are deliberately misleading.

80. The Applicant, while she was married to another man and living in Kemptville, purposely arranged to be introduced to the Respondent. Approximately two weeks after the initial introduction, the Applicant telephoned the Respondent and expressed disappointment that he had not contacted her. The Applicant then suggested that they meet for supper. When the Respondent met the Applicant for supper as she requested, she then disclosed to him that she was married and still living with her husband. When the Applicant disclosed this to the Respondent he told her that he would not see her again because he did not want to be involved with someone who was in a married relationship.

81. At this period of time, the extent of the Respondent’s wealth had been made public. Shortly after the Respondent told the Applicant that he did not want to be involved with someone who was in a married relationship, she contacted him again and announced that she had separated from her husband.

82. When the relationship between the Applicant and the Respondent became intimate, the Applicant told the Respondent that she was taking birth control pills as contraception. The Respondent later learned that the Applicant had disclosed to two other individuals that she had stopped practicing any birth control in the hope of becoming pregnant with the Respondent’s child. The Applicant surprised the Respondent with her announcement in June 2012 that she was pregnant with the Respondent’s child and intended to give birth to the child. At the time, the Respondent had concerns that the Applicant’s actions had been intentional, surreptious and motivated by her own self interest. Nonetheless, the Respondent had feelings for the Applicant and believed it was best if they stayed in the relationship in order to raise the child together. The Applicant resigned from her position as a catering manager. She then disclosed to the Respondent that she had past debts which the Respondent paid.

83. Despite how the Applicant tries to characterize the parties’ relationship as being unequal, it was the Applicant who planned her way into the Respondent’s life and family.

84. Over the course of the parties’ relationship it became increasingly evident to the Respondent that, in the Applicant’s view, the basis for their relationship was his wealth and the money he could therefore provide to the Applicant and her parents.

[38] The respondent argues these paragraphs are in direct response to paragraphs 40 and 43 of the Amended Application which read as follows:

40..The parties’ relationship was never equal. When the Applicant met the Respondent she was an immigrant to Canada with limited proficiency in English and modest means. She is the Respondent’s junior by twenty-three years.

43..As the parties’ relationship was breaking down the Respondent belittled the Applicant as a wife and mother. He mocked the Applicant’s expectation of a monogamous relationship. He degraded her with requests for sexual favours in public with other women. He lectured her daily, blaming her entirely for the breakdown in their relationship. The effect of these acts was to diminish the Applicant’s confidence and self-esteem.

[39] The applicant has made allegations regarding the nature of the parties’ relationship when it began and ended. The respondent is certainly entitled to respond; however, he goes too far. He does not respond directly to the material facts alleged regarding Ms. Dhieux’ lack of proficiency in English and limited means nor to the allegations as to his own behaviour when the relationship was breaking down. Instead, he attacks Ms. Dhieux’ character as it relates to her motivation in entering the relationship and pleads detailed evidence regarding how Lilli was conceived.

[40] Paragraphs 80 and 81 deal with Ms. Dhieux’ motives in beginning a relationship with Mr. Potter before Lilli was even born and outlines subordinate facts not directly relevant to the issues before the Court.

[41] Paragraph 82 reads like a paragraph of an affidavit and is largely evidence not material facts.

[42] In addition, at this point in time, after a Joint Parenting Agreement and Minutes of Settlement relating to a joint custody and equal time sharing parenting arrangement, alleged actions of the applicant before Lilli was even born are not directly relevant to the issues before the Court. I find these paragraphs to be more prejudicial than probative. They could prejudice and/or delay the trial. Therefore, I order that paragraphs 80, 81 and 82 be struck. Paragraphs 83 and 92, I find acceptable. They do not meet the criteria for striking a pleading outlined under Rule 14(22).

Ms. Dhieux’ Family

[43] The applicant challenges paragraphs 84 through 88, 90, 92 and a portion of 99 of the respondent’s Amended Answer dealing with Ms. Dhieux’ family. Those paragraphs read as follows:

84. Following the birth of the parties’ daughter, the Applicant asked the Respondent to provide financial assistance to her parents. She later disclosed to the Respondent that she had been required to ask every boyfriend she had since being a very young woman for money for her parents.

85. In the course of evaluating the Applicant’s parent’s circumstances, the Respondent learned that, although the Applicant’s family had been in a small scale construction business in France, their whole working lives, they had lived substantially beyond their means, accumulated significant debt, and were under investigation by tax authorities for years of unpaid income taxes. The Applicant had worked in the family business prior to leaving France and was aware of her parent’s difficulties.

86. With the help of financial and tax specialist, both in Canada and in France, the Respondent resolved the Applicant’s parents’ various financial and legal problems, paid their back taxes, and paid for the construction of a new home, paid all her parent’s debts, and provided additional funds for living expenses. Up to the time of the separation of the parties, total financial assistance provided was approximately $1,800,000.00.

87. Despite the Respondent’s generous support of her parents, the Applicant frequently arranged to direct significant additional amounts of money for her parent’s benefit, against the Respondent’s objections, including following the parties’ separation in 2009.

88. Nonetheless, during the parties’ marriage the Respondent took care of the Applicant’s family and included them in the parties’ lives.

89. The Applicant’s parents made it clear throughout the Respondent’s relationship with Applicant that they preferred holiday vacations, all paid for by the Respondent, with the Respondent’s family to exotic vacation destinations rather than to the family’s Ottawa home.

90. Over the course of the parties’ relationship it became increasingly evident to the Respondent that, in the Applicant’s view, the basis for their relationship was his wealth and the money he could therefore provide to the Applicant and her parents.

91. The Respondent’s allegations in paragraph 43 are complete fabrications. As a result of the Respondent having to be involved in protecting Lilli’s sisters and as a result the Respondent not meeting all the Applicant’s financial demands for her parents, the Applicant became increasingly aggressive and abusive, not only to the Respondent but to Lilli’s sisters as well. The Applicant has admitted her abusive behaviour in previous court proceedings.

[44] The respondent argues these paragraphs are in response to paragraph 41 of the applicant’s Amended Application as follows:

41. The Respondent was mentally abusive to the Applicant throughout their cohabitation and marriage, controlling and dominating her. He imposed a strict schedule for the entire household. He would discipline the Applicant by leaving her at home over her protest while he travelled on family holidays with their daughter, Michaela and/or Tennyson. The Applicant’s parents were not welcomed in the family’s home, even for important family celebrations like Christmas, Easter, Lilli’s birthdays and the Applicant’s 40th birthday, creating conflict between the Applicant and her parents and further isolating her from an important source of support. The Applicant’s sphere of influence extended to providing care for Lilli and for the Respondent’s daughters from his previous marriage, but even that was subject to rigid rules imposed by the Respondent.

[45] The respondent argues that he is entitled to respond to the allegations by pleading the materials fact supporting his defence that:

(a) the Applicant’s relationship with her parents had been troubled by a history of financial difficulties and requests by them for her assistance;

(b) rather than isolate the Applicant from her parents, the Respondent sought to alleviate the Applicant’s stress and the tension in her family by assisting her parents financially; and

(c) the Respondent welcomed the Applicant’s parents into his home and supported the Applicant’s relationship with them, however, the Applicant’s parents preferred to accompany the parties to exotic vacation destinations rather than to visit Ottawa.

[46] I agree and if Mr. Potter’s Amended Answer had framed his response in this manner, it would be acceptable. However, again, he goes too far.

[47] Paragraph 89, although it arguably outlines evidence not material facts, is not challenged by the applicant. Further, I do not find paragraphs 88, 90, 92 nor the challenged portion of 99 to meet the test under Rule 14(22).

[48] The other impugned paragraphs in this section, i.e. 84 – 87, are to be struck. They do not respond to the applicant’s allegations that her parents were not welcome in the family home which created conflict between her and her parents. The details of Ms. Dhieux’ parents’ finances and tax problems which predate Lilli’s birth are not relevant to the issues before the Court. These allegations, if pursued, could involve the production of financial disclosure by Ms. Dhieux’ parents and possibility evidence of witnesses from France. This would inevitably lead to delays and would be an abuse of the court process.

[49] The focus of this case must be on Lilli and the parenting arrangements that are in her best interests not on allegations of collateral facts which of are of little, if any, relevance; are more prejudicial than probative, and will cause delays in providing fair, efficient, expeditious justice, as required by the Family Law Rules.

[50] The respondent has leave to further amend his Answer, as framed in his argument on page 10 of his Factum, as noted above.

Previous Court History

[51] The applicants challenges paragraphs 71, 128 and 129 of the respondent’s Amended Answer dealing with previous litigation between the respondent and his former wife and between the respondent and Ms. Dhieux herself. Those paragraphs read as follows:

71. By paragraph 37 the Applicant essentially asks that she be granted final decision making about Lilli despite the fact that on the two occasions the parties have had the court make decisions about Lilli’s best interests, the courts have found that the Respondent’s proposal, not the Applicant’s, was in Lilli’s best interests and have ordered costs against the Applicant. On the arbitration the Applicant forced over Lilli’s summer trip to Fiji in 2012, the arbitrator agreed it was in Lilli’s best interests to travel with the Respondent as proposed by him.

72. The Respondent’s parenting has been scrutinized by the court both in the litigation with his former spouse and in the litigation and arbitration with the Applicant. In the litigation with his former spouse, the courts have repeatedly accepted the Respondent’s evidence and have found him to be acting in the best interests of his children.

73. In the court applications with the Applicant, the court has again accepted his proposal for what is in Lilli’s best interests. The Respondent’s efforts to decrease the conflict caused by the Applicant are made in Lilli’s best interests.

[52] The respondent argues these paragraphs are in response to paragraphs 37, 38 and part of 46 of the applicant’s Amended Application as follows:

37. Should the Respondent persist with his claims, it may be in Lilli’s best interests that a single parent be charged with responsibility to make final decisions for her where there is disagreement between her parents. If it is determined that it is in Lilli’s best interests that one parent be charged with this ultimate responsibility, the Applicant seeks an order that she be the parent so charged. Such an order would foster stability and predictability, both of which are compromised by the Respondent’s new claims.

38. The Respondent had a long history as a childless bachelor, marrying for the first time at age fifty-five. The Respondent’s marriage to his first wife, Alana Kainz, lasted for four months followed by a bitter divorce and a protracted custody battle over the couple’s two children, Michaela Kainz-Potter (born December 16, 1996) and Tennyson Kainz-Potter (born September 25, 1998). The parenting battle continues to this day.

46…The Applicant has spent four years in an atmosphere of uncertainty and vulnerability, with constant reminders that a reluctance to yield to the Respondent’s demands could lead to the same results as those suffered by Ms. Kainz.

[53] The thrust of paragraphs 71, 128 and 129 is that, in previous litigation, the respondent’s proposals and evidence have been accepted as being in Lilli’s best interests.

[54] The litigation referred to in paragraph 129 was with respect to a decision as to where Lilli should attend school which was not covered by the Parenting Agreement or any other written agreement. It is not connected with the issues in this litigation. The references in paragraphs 71 and 128 are with respect to litigation involving another party, Ms. Kainz and other children, not Lilli and is therefore remote from this litigation. The only similarity is that it involved a custody dispute.

[55] What the respondent has pleaded in paragraphs 71, 128 and 129 is evidence not material facts. The respondent argues that from this evidence, the Court will be able to draw the conclusion that the respondent is a credible, reasonable person whose evidence has been accepted on previous occasions. He has been believed before and therefore is to be believed now. This is oath helping. The Court is being asked to infer from this evidence that the respondent is a credible person who has a better plan. It is the role of the trial judge in this case to decide the credibility of the parties based on the evidence before the Court and to draw his or her own conclusion, not to adopt the credibility findings of a previous judge or arbitrator on factual matters.

[56] Therefore, I do not find paragraphs 71, 128, and 129 appropriate. They consist of evidence, would delay the proper and just resolution of this matter, involve oath helping and will be struck.

Conclusion

[57] Unfortunately, it appears what began as a co-operative Joint Parenting Agreement in 2009 has now deteriorated into an acrimonious dispute between the parties regarding some of the specifics of that parenting arrangement. The conflict is escalating and is reflected in the amended pleadings of both parties.

[58] Both Ms. Dhieux and Mr. Potter would be well advised to reduce the hostility, diffuse the conflict and work together to reach an arrangement in the best interests of their 10 year old daughter.

Costs

[59] If the parties cannot reach an agreement on costs, brief written submissions of no more than two pages with attached Offers and Bills of Costs are to be provided by the applicant by January 17, 2014, followed by the respondent by January 31, 2014 and any reply submissions by applicant by February 7, 2014, if necessary.

Blishen, J

Date: December 20, 2013

COURT FILE NO.: FC-09-2751-2

DATE: 20131220

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Véronique Dhieux, Plaintiff

AND

Michael Potter, Respondent

BEFORE: Blishen, J.

COUNSEL:
Caroline E. Kelly and John N. Pepper, for the Applicant

Carol A. Crawford, for the Respondent

ENDORSEMENT

Blishen, J

Released: December 20, 2013

[^1]: Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd., 1991 7050 (ON SC), [1991] O.J. No. 915, 3 O.R. (3d) 684 (Ont. Gen. Div.).

[^2]: Grace v. Usalkas, [1959] O.W.N. 237 (Ont. H.C.J.); Phillips v. Phillips (1878), 4 Q.B.D. 127 (C.A).