Court File No.: FS-13-18928
Date: 2014-01-24
Superior Court of Justice - Ontario
Re: C.M.M., Applicant
And:
D.G.C, Respondent
Before: Madam Justice Darla A. Wilson
Counsel: Jeffrey Wilson, for the Applicant
Harold Niman & Vanessa Amyot, for the Respondent
Heard: December 12, 2013
Endorsement
[1] This is an unusual application which was commenced in September 2013 by the Applicant, who is 14 years of age and alleges the Respondent is her biological father. She claims child support and s. 7 expenses from the date of her birth in March 1999. In her application, she asserts that she had never met her father and pleads that her birth parents signed an agreement (“the Agreement”) by which the Respondent paid a lump sum to the mother of the Applicant (“J.M.”) in full satisfaction of his child support obligations. In the agreement, he agreed to have no contact whatsoever with the Applicant or her mother. In the application, it is asserted that the Applicant wishes to attend Havergal College, a private school in Toronto. The tuition for Havergal is currently $27,470.00 and because her mother does not have the financial ability to pay the tuition, the Applicant seeks financial assistance from the Respondent.
[2] In his Answer, the Respondent states that he and J.M. entered into the March 1999 agreement to settle the issues on a final basis after both received legal advice. They honoured the agreement for 14 years which means he had never met the applicant prior to the commencement of this litigation. He asks that the Application be dismissed.
Background
[3] Until this application was commenced, it is not disputed that the Respondent had never met the Applicant and had had no contact with J.M. since December 1998. He is a lawyer practicing in Toronto who is married with 3 daughters aged 9, 6 and 3.
[4] By letter dated February 26, 2013, the Applicant wrote to the mother of the Respondent identifying herself as her granddaughter. She stated that she wanted “financial support for fees at Havergal College” for her high school years, which was estimated at $130,000 for fees and $50,000 for textbooks. She received no response to the letter and subsequently retained counsel and issued this application.
[5] The Respondent served his Answer in November 2013. He asserts that the first notice he had of this claim was when his elderly mother called to advise of receipt of the letter. Subsequently, he received a voicemail from the Applicant. He pleads that the action is not properly constituted in that the minor Applicant needs to be represented in this proceeding by a Litigation Guardian. The Respondent relies on the terms of the agreement and states that in any event, he cannot afford private school tuition.
[6] There has been a case conference and the matter was given an expedited trial date and is scheduled to proceed to trial in March, 2014.
Motions Before the Court
[7] The Respondent brought a motion returnable November 19, 2013 seeking the following relief: an order sealing the file; an order initializing the names of the parties; and an order restraining the Applicant from contacting his family.
[8] The Applicant brought a motion returnable November 19, 2013 requesting: an order striking out certain paragraphs of the Respondent’s Answer; an order striking out various paragraphs of the affidavit of the Respondent sworn November 8, 2013; an order requiring the Respondent to pay interim disbursements of $50,000.00; and an order requiring the Respondent to pay temporary child support to the Applicant in the sum of $1,387.00 per month.
[9] The Applicant then served a supplementary Notice of Motion returnable December 12, 2013 for an order abridging the time for filing of expert reports at trial; and an order requiring the Respondent to produce financial documentation.
[10] The Respondent served a supplementary Notice of Motion returnable December 12, 2013 requesting an order for questioning of the Applicant and of her mother, who was added as a party to this litigation, and for an order for production of the file of solicitor Linda Silver-Dranoff who acted for the mother on the Agreement.
[11] The Applicant then served a further supplementary Notice of Motion returnable December 12, 2013 for an order striking out various paragraphs of the affidavit of the Respondent sworn November 29, 2013 and for an order for summary judgment dismissing the claims of the Respondent as contained in paragraphs 6 and 7 of the Answer. Those paragraphs relate to the requests to enforce the Agreement and require the mother to repay the Respondent the lump sum plus legal fees or to indemnify the Respondent for any child support payments he is ordered to make.
[12] After the hearing of the motion on December 12, counsel for the Applicant, Mr. Wilson, contacted the court to advise that he wished to bring a motion for leave to re-open submissions to consider the affidavit of A.M., the maternal grandfather of the Applicant, sworn December 20, 2013 bearing on the issue of whether or not the Applicant ought to be represented by a Litigation Guardian.
[13] Mr. Niman, counsel for the Respondent, objected and took the position that the argument on the motion was finished and ought not to be re-opened. I convened a case conference with counsel on January 7, 2014 at which time I agreed to allow Mr. Wilson to deliver brief written submissions on the discrete issue of the Litigation Guardian. Mr. Niman was given the opportunity to deliver brief responding submissions. The affidavit of J.M. was sent to me in a sealed envelope.
[14] I pause to note that the confirmation that was sent to the court indicated that 2 hours of court time was required for the hearing of these matters. In my view, given the nature and number of motions and the volume of materials, that was an inadequate amount of time. I will deal with the issues raised in the motions in the order in which the various motions were served.
Respondent’s motion for an order sealing the court file and initializing the names of the parties
[15] Counsel for the Respondent submits that on several occasions he requested that an order sealing the Court file and initializing the parties be obtained on consent but these requests were refused and, instead, he was invited to bring a motion.
[16] In his affidavit sworn November 1, 2013, the Respondent deposes that his 3 young daughters do not know about the Applicant or the circumstances surrounding her birth or this litigation. The Respondent and his wife are seeing a child psychotherapist to determine how best to address this situation with their daughters. The therapist, Merike LeFeaver, has authored a letter dated October 20, 2013 in which she indicates that if the lawsuit becomes one of public record and the children learn about it, there could be potentially psychologically damaging effects on the children and their relationship with their father.
[17] Mr. Wilson notes that the children of the Respondent are not parties to this action and it is inappropriate for the court to consider the risk of harm to them and that the burden on a party requesting such an order is heavy and in this case, it has not been satisfied.
[18] Further, he argues that the expert opinion of the therapist is inadmissible as it does not comply with the requirements of Rule 14(19) of the Family Law Rules. He brings a motion to strike out paragraph 22 of the affidavit of the Respondent dated November 1, 2013 along with the letter from LeFeaver. Since this determination must be made prior to considering the motion for a sealing order, I will deal with it first.
[19] Rule 14(19) provides that on a motion, the evidence in affidavit form may contain information the deponent learned from someone else if the source of the information is identified by name and it is sworn that the affiant believes the information is true.
[20] With respect to the motion to strike paragraph 22 of the affidavit and Exhibit C, this refers to the opinion of the psychotherapist Merike LeFeaver whose letter is attached as an exhibit to the affidavit. In the letter, it states that Ms. LeFeaver has been providing treatment to the Respondent and his spouse concerning the impact on their family should their daughters learn about this litigation.
[21] Mr. Wilson argues the paragraph in the Respondent’s affidavit referencing Ms. LeFeaver’s letter ought to be struck as it does not comply with Rule 14(19) and further, the report did not comply with the requirements under the Evidence Act, R.S.O. 1990, c. E.23.
[22] In my view, Mr. Wilson’s position cannot be sustained on the motion before me. Whether the opinion of Ms. LeFeaver would be admitted into evidence by the trial judge is a different issue than whether it is proper for the Respondent to make reference to the views of the counsellor in his affidavit in support of his motion for a sealing order.
[23] Counsel for the Applicant relies on Bandas v. Demirdache, 2013 ONCJ 294 but in my view, that does not assist him. In that case, the mother in her affidavit stated what she was allegedly told by the child’s doctor and other professionals. This is quite different than the facts before me, where the Respondent has deposed that he and his spouse have been involved in treatment and he sets out the opinion of the therapist in his affidavit and appends her letter as an exhibit. It is not simply a case of a party stating, without further evidence, what someone else has told them. In this case, the Respondent has set out his understanding of the concerns of Ms. LeFeaver and has included her letter. I am not deciding if Ms. LeFeaver is a properly qualified expert before the court, as was the case in Sehota v. Sehota, 2012 ONSC 848, 18 R.F.L. (7th) 459, where the party sought to introduce an expert opinion for use on a motion to determine residency of children. In that case, the court had to determine if the parenting coordinator who had authored the report was a properly qualified expert on which the court could rely in its ultimate determination of residency of the children.
[24] I am not deciding if Ms. LeFeaver meets the qualifications for admission as an expert at the trial of this action; rather, the Respondent’s affidavit states his belief that he is concerned about the effects on his daughters of their learning of the existence of the Applicant and this lawsuit and that his concern is shared by the therapist he sees. In a sense, the letter from the therapist is included to confirm the Respondent’s apprehension of his daughters learning of this lawsuit and the potential negative impact it could have on them. It is, in my view, on a motion, some evidence that the court can take into consideration when deciding if there ought to be a sealing order of the court file. That is a different test than deciding if Ms. LeFeaver possesses the necessary qualifications to be permitted to give expert opinion at trial. In my opinion, there is nothing offensive about the inclusion of paragraph 22 in the Respondent’s affidavit or the letter attached as Exhibit C and I decline to strike them.
[25] The Courts of Justice Act, R.S.O. 1990, c. C.43, confers on judges the discretion to seal a court file: s. 137(2). I accept that the principles of openness and transparency are important values in our system of justice in order that the public is satisfied that justice is being done and is seen to be done. However, this must be balanced against protecting children who may be adversely affected by litigation. I am also mindful of Mr. Wilson’s argument that the children in question in the case before me are not parties to the litigation, but are the children of the Respondent.
[26] I am guided by the comments of Justice Kiteley in M.S.K. v. T.L.T., [2002] O.J. No. 4179 (Ont. S.C.), where she stated, at para. 24, “[T]he protection of children probably trumps public access, bearing in mind that openness and transparency may sometimes be so crucial to the protection of children that openness prevails. In its parens patriae role, the court must be diligent in preventing children from being harmed by virtue of the consequences of one of the parents seeking the intervention of the court.” Kiteley J. ordered that certain portions of the court file ought to be expunged in order to remove the risk of potential harm to the child. The Court of Appeal went further and ordered the entire file be sealed in order to protect the child: (2003), 2003 27471 (ON CA), 168 O.A.C. 73 (Ont. C.A.).
[27] In the case before me, the unchallenged evidence from the psychotherapist is that learning of the litigation could have potentially “psychologically damaging effects on the children and their relationship with their parents, particularly their father. The issues raised in the litigation call into question the very foundation that their lives depend on and go to the very heart of what it means to be a family.”
[28] I do not accept Mr. Wilson’s submission that the Court ought to only consider potential harm to children who are parties to litigation; in my view that is too narrow an interpretation to place on the discretion that has been conferred on the court. It makes no sense to me that the Court would only be concerned with the possibility of negative consequences arising from litigation in the context of children who are parties to a lawsuit and would ignore the possibility of harm being visited upon other children who are directly affected by the litigation yet are not parties to it. The preferable view is for the court to take into account the interests of children who clearly can suffer harm arising directly from a lawsuit which involves one or more of their parents, even if the children themselves are not named in the lawsuit. In the matter before me, the young children of the Respondent, while not directly involved in this Application, may nevertheless be impacted by discovering the particulars of the lawsuit. This potential outcome should not be ignored by the Court.
[29] There is evidence in the affidavit of the Respondent that the Applicant has made reference to this litigation online. One of the concerns addressed by Justice J. Mackinnon in C.M.G. v. R.G., 2012 ONSC 2496, where there was a motion made on consent for an order sealing the court file. It was contended that there was the possibility that the children of the parties might suffer emotional harm as a result of the lawsuit, particularly if other children learned about the facts of the case and subjected the children to bullying and other offensive behaviour on the computer. As the judge noted, at para. 18, “I am satisfied that the children of this marriage are particularly vulnerable and are at risk of significant emotional harm and negative repercussions arising from a public airing of some of their mother’s claims and their father’s alleged misconduct… This is likely to be compounded should some aspects of their parents’ litigation become known in their community. Protecting the children in such circumstances is a social value of superordinate importance.”
[30] I am persuaded that the potential that the children of the Respondent learning of this litigation and the existence of the Applicant and the resulting emotional harm is a real concern and justifies an order under s. 137(2) of the Courts of Justice Act that the parties be referred to by their initials. I am not persuaded at this juncture that the risk of emotional damage to the children is such that the entire court file needs to be sealed and I leave this decision to the trial judge.
Respondent’s motion for a restraining order
[31] The Respondent seeks an order that the Applicant be restrained from contacting his family. This did not appear to be opposed by counsel for the Applicant. I note the unusual facts of the case and that the Applicant contacted the mother of the Respondent without any notice to the Respondent of her intention to do so. In the circumstances and in light of my order for initializing of the file in order to prevent harm from occurring to the children of the Respondent, it is appropriate that an order be made preventing the Applicant from any contact with the family of the Respondent without his consent.
Respondent’s submission that there must be a Litigation Guardian
[32] This action was commenced by the Applicant who was born in 1999 and is therefore 14 years of age. In his Answer, the Respondent asserts that the Application is not properly constituted as there is no Litigation Guardian to represent the infant.
[33] An affidavit dated September 5, 2013 was filed by the maternal grandfather of the infant, A.M., with whom the Applicant resides. In it, he deposes that he consents to act as Litigation Guardian if necessary and that he acknowledges being advised of his liability to pay costs if any are awarded against the Applicant in this matter.
[34] As I have indicated, after the arguing of the motion, I was contacted by the solicitor for the Applicant who advised that the grandfather had changed his mind and was no longer content to act as Litigation Guardian if the court made such an order. Following my decision to allow further written submissions from counsel on this particular issue, I read and considered the materials that were delivered.
[35] Mr. Wilson advises that the grandfather changed his mind and the Court cannot force him to act as Litigation Guardian in this matter. Counsel maintains his position advanced during the hearing of the motion that a Litigation Guardian is not necessary but alternatively, if one is, it is submitted that the Office of the Children’s Lawyer be appointed.
[36] Mr. Niman submits that Rule 7 of the Rules of Civil Procedure requires a minor to be represented by a Litigation Guardian. Further, he argues that a Litigation Guardian is not permitted to simply resign and it would be inappropriate for the Court to allow the grandfather to withdraw after the motion was argued through the delivery of an affidavit in which he deposes that he did not understand the extent of his exposure for costs.
[37] In the circumstances, I determined that it was necessary that I review the additional affidavit of the grandfather sworn December 20, 2013. In that document, he states that he “did not appreciate the extent of the costs” to which he might be liable at the time he swore his original affidavit.
[38] Counsel for the Applicant argues that the Rules of Civil Procedure do not apply to this action and that Rule 2 of the Family Law Rules, O. Reg. 114/99, is applicable and it defines “special party” as a child but does not include a child in a child support case. Thus, he submits that because the Applicant has commenced this claim she can be represented by a lawyer on her own behalf.
[39] I do not accept the submission of the solicitor for the Applicant that the Family Law Rules state that a child does not need a Litigation Guardian to bring an application. The case of J.G. v. P.G., 1988 1429 (ON CJ), [1988] O.J. No. 3137 (Prov. Ct. - Fam. Div.), relied on by counsel is not of assistance because it deals with a factually different matter where a father was required to pay child support and the 14 year old then left the parental home. The motion before the court was for interim support. While the judge stated that he found no problem in the boy suing his parents and did not see any provision in the Provincial Court rules that required him to do so by way of a guardian, it it does not appear that anyone was challenging the right of the boy to assert the claim without a litigation guardian. Furthermore, the matter was brought pursuant to the rules in provincial court, which is not the case before me.
[40] Rule 1(7) of the Family Law Rules states that if the rules do not cover a matter adequately the court may, if it considers it appropriate, refer to the Rules of Civil Procedure or the Courts of Justice Act. This discretion is broad. There are many examples of the court in family law matters employing the Rules of Civil Procedure on issues not specifically dealt with in the Family Law Rules: see in particular the application of rules governing costs where the Rules of Civil Procedure provide a more specific approach: see Himel v. Greenberg, 2010 ONSC 4084, 93 R.F.L. (6th) 384.
[41] The court considered the definition of a special party in Zabawskyj v. Zabawskyj, 2008 19248 (ON SC), [2008] O.J. No. 1650, 55 R.F.L. (6th) 36 (S.C.). This case involved a family law application in which an 81 year old woman claimed a trust interest in property owned by her husband who was 85. Both of the parties were deemed incapable of instructing counsel. As a result, the wife moved for an order appointing the Public Guardian and Trustee as litigation guardian while the son of the father moved for an order appointing him as his father’s representative.
[42] In ruling on the motions, the judge noted that a “special party” is a person who is mentally incapable of instructing counsel and mentally incapable of understanding information or issues in the litigation. He went on to state, at para. 12, “Rule 4(2) of the Family Law Rules provides that a court may authorize a person to represent a special party if the person is appropriate for the task and willing to act as representative. This rule is somewhat terse. As a result, courts have tended to rely on Rule1(7) of the Family Law Rules to look to Rule 7 of the Rules of Civil Procedure where a more detailed framework exists for considering the issue of the representation of mentally incapable person in litigation. Applying the Rule 7 framework to issues of mental capacity in family law litigation makes sense. It ensures a consistency of practice and jurisprudence on the issue, thereby affording parties needed guidance.” I agree.
[43] Rule 7 of the Rules of Civil Procedure deals with parties under a disability and this includes minors. The rule requires that persons under a disability must be represented by a Litigation Guardian—the language is mandatory. This individual must file an affidavit confirming that he or she has consented, has no interest adverse to the party under a disability and has been informed of his or her possible liability for costs.
[44] A Litigation Guardian is required to file an affidavit which among other things acknowledges that the person is aware of the potential liability to pay costs personally if there are costs awarded against the minor: Rule 7.02. If there isn’t anyone to act on behalf of a minor, the court may appoint the Children’s Lawyer: Rule 7.04. The Litigation Guardian is charged with the duty of attending to the interests of the minor and to take all steps necessary for the protection of those interests and shall instruct the lawyer in the conduct of the proceeding: Rule 7.05.
[45] There are sound policy reasons for the requirement of a Litigation Guardian in a case involving a minor and while I am aware that there have been cases that proceeded with minors and no Litigation Guardian, certainly these are exceptions to the rules. In the case at hand, it is unclear to me from whom Mr. Wilson is obtaining his instructions but it must be the 14 year old Applicant. Her mother, who lives with the Applicant, has been made a party at the instance of the Respondent but she has not responded to this litigation, for reasons which are not clear.
[46] This is an unusual fact situation. An expedited trial date was set which will take place in March 2014. I am not persuaded there is any reason to depart from the usual procedure of a minor being represented by a Litigation Guardian. The fact that the Applicant states that she is capable of instructing counsel is not determinative of the point and does not persuade me that it is necessary to depart from the usual procedure of having a minor represented by a Litigation Guardian.
[47] The Rules provide that the Litigation Guardian must acknowledge responsibility for the payment of costs orders made against a minor. In the case before me, the outcome is by no means certain. As counsel advise, the application involves a novel point of law. In my view, it would be unfair to permit the infant Applicant to proceed with this matter through a trial without concern about payment of costs. The Family Law Rules and the Rules of Civil Procedure have specific rules that govern costs to parties who are unsuccessful and one of their functions is to encourage parties to be reasonable in conducting lawsuits. Obviously, the Applicant has no source of income or any assets. It would be unfair to permit her to effectively insulate herself from payment of a costs award by proceeding with this Application without a Litigation Guardian. Furthermore, in my view, while she may be a bright, mature 14 year old, she requires someone with maturity to counsel her on the merits of the lawsuit and to provide instruction to counsel going forward. For all of these reasons, I order that the Applicant be represented in this proceeding by a Litigation Guardian. If her grandfather is unwilling to act in this capacity, the Applicant shall appoint another individual forthwith.
Applicant’s motion for an order for payment of interim disbursements of $50,000
[48] The Applicant seeks $50,000 in payment of interim disbursements. In her affidavit the Applicant deposes that she has no funds to go forward with the litigation and she states, “I believe that my birth father has sufficient wealth to be able to contribute to the cost of my litigation expense.” There is nothing apart from this bald statement to support the contention that the Respondent is a wealthy man.
[49] The Applicant relies on Rule 24(12) of the Family Law Rules, which provides that “The court may make an order that a party pay an amount of money to another party to cover part of all of the expenses of carrying on the case, including a lawyer’s fees.” The Court has discretion to order payment of expenses in order to ensure that the process is fair to all parties, or to put it another way, “to level the playing field”: Stuart v. Stuart (2001), 2001 28261 (ON SC), 24 R.F.L. (5th) 188 (Ont. S.C.), at para. 8. The primary objective of an order for payment of interim disbursements is to ensure fairness between the parties.
[50] In the case at hand, the Applicant wishes to have Melanie Russell, a business valuator, prepare an expert report for use at trial to analyze the Respondent’s income for support purposes. Her affidavit estimates her fee for doing so to be in the range of $50,000.
[51] In Rosenberg v. Rosenberg (2003), 2003 2228 (ON SC), 39 R.F.L. (5th) 403, Justice Macdonald dealt with an application for payment of interim disbursements and stated, at para. 18, “[T]he civil process operates on the premise that the parties pay their own legal fees until the proceedings are over and that it would take more than evidence of an inability to pay one’s lawyer to reverse that presumption… these factors are applicable to an application for interim disbursements. They are the merits of the matter, the hardship to the moving party if the relief is not granted, and the ability of the moving party to repay any amounts ordered for interim disbursements in the event that the moving party is unsuccessful at trial in achieving at least the amount ordered for interim disbursements.”
[52] In the case before me, the Applicant seeks payment of $50,000 presumably so she can pay Ms. Russell to complete the report on the Respondent’s income. In my view, that is an exorbitant amount as an estimate for preparation of such a report without some further explanation as to why the fees would approach that amount.
[53] In my opinion, the Applicant has not demonstrated that it would be fair in the circumstances to order the Respondent make a payment for interim disbursements. She has chosen to launch this Application which will require the court to consider and rule on the Agreement the parents have governed themselves by for the past 14 years. Given the evidence before me making an order for payment of $50,000 for interim disbursements would not level the playing field; rather, it would clearly result in financial hardship to the Respondent and there is nothing in the evidence that suggests the Applicant has any ability to repay the sum of $50,000 should her Application be unsuccessful.
[54] In addition, the evidence is lacking as to why the expert requires this amount to prepare a report. Ms. Russell is experienced in valuations and is familiar with preparation of reports for use at trial. The amount of $50,000 which is cited is exorbitant and without further explanation as to how this quantum was arrived at, I am not persuaded it is reasonable or necessary in order for the Applicant to present her case at trial.
[55] As I have indicated, the Applicant raises some novel issues so it is different than other cases where payment of interim disbursements is sought and can be set off against, for example, an equalization payment. It would be unfair, in my opinion, on the facts of this case to require the Respondent to pay interim disbursements of $50,000 when there is no ability to recoup this amount if the Application is unsuccessful. The Respondent will have funded the litigation without any recourse to recover.
Applicant’s motion for an order that the Respondent pay temporary child support
[56] Mr. Wilson argues that the Respondent ought to be paying guideline child support of $1,387.87 according to his income. He submits that s. 33(1) of the Family Law Act, R.S.O. 1990, c. F.3, is mandatory and it is irrelevant that the trial is set for March 2014.
[57] Mr. Niman counters that the facts of this case do not require an order for interim support and there is no pressing need for funds for the child.
[58] Section 33(1) of the Family Law Act states that a court may, on application, order a person to provide support for his or her dependents and determine the amount of support. Subsection (4) of that section states that a court may set aside the provisions in a domestic contract dealing with child support in certain circumstances, notably, if it would result in unconscionable circumstances.
[59] The law is clear that parents cannot contract out of their child’s right to support: Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670. However, this is a case where the parties entered in to an agreement which settled various issues between them, including child support. It is not my task on the motions before me to determine whether the application will be successful and the Respondent will be ordered to pay child support from the date of the Applicant’s birth, or whether the terms of the signed agreement ought to govern; that will be for the trial judge to decide when this case is heard in March 2014.
[60] I agree that the Court must be cautious where granting interim relief would contradict or nullify a signed agreement between parents: Jones v. Murray, [2005] O.J. No. 2761 (S.C.).
[61] In Hall v. Sabri, 2011 ONSC 5495, 11 R.F.L. (7th) 380, Justice Bielby decided a motion for interim support and disbursements and a declaration that the separation agreement the parties had signed was unconscionable. Bielby J. noted the claim of the Applicant wife was questionable on the merits and did not have a substantial likelihood of success and he stated, at para. 33, “It seems to me that until an agreement is ruled invalid, and assuming it is properly executed, the agreement remains valid.” I agree that is a correct statement of the law.
[62] The evidence does not persuade me that the Applicant would suffer irreparable harm should the relief not be granted. The affidavit evidence indicates that she wishes for funds to pay for private school tuition. This falls short of demonstrating a need for support, which must be established on a motion for interim support. There is nothing urgent about payment. The evidence from the Respondent is that he experienced a career setback in 2009 which necessitated him leaving the law firm where he was a partner. Further, he lost clients and had to start his own law firm and as a result, he has limited financial means.
[63] As a motions judge I am in no position to scrutinize the merits of the application; rather, on a motion for interim support I consider the means and needs of the parties and whether the Applicant has persuaded me that there is a prima facie case. On the facts before me, I do not find there is an immediate need for support and given the proximity of the trial date, the Applicant will not be prejudiced by the denial of interim support. For all of these reasons, the motion for interim support is dismissed.
Applicant’s motion for an order abridging the time for filing expert reports at trial & for an order for production of financial documentation
[64] Although the request for an order abridging the time for filing expert reports was requested in the Applicant’s notice of motion, no time was spent on the argument during the motion. I was advised that the Applicant and the Respondent agreed to this order at the case conference but the mother was not present. She did not attend on the motion, either. The case was ordered to trial on an expedited basis. In my view, if the trial is going to proceed in an orderly fashion, there ought to be an order granting leave to the parties to deliver expert reports outside of the time requirements of the Rules.
[65] The Applicant shall deliver any expert reports on which she intends to rely at trial on or before February 24 and the Respondent shall deliver any responding reports on or before March 7. This order is subject to amendment by the trial judge.
[66] With respect to the request for financial production from the Respondent, the evidence before me from the Applicant’s expert Melanie Russell in the form of her affidavit sworn November 29, 2013 is that she requires, to commence, 14 items as set out in her letter of November 22, 2013. In my view, items 1 through 12 are relevant documents and the Respondent shall make best efforts to produce the listed items as soon as possible. With respect to her request to contact representatives of Mathews, Dinsdale & Clark LLP to discuss its lawsuit with the Respondent, its settlement and the Respondent’s employment there, this is unnecessary for Ms. Russell to prepare a report. She has requested documentation concerning the settlement of the lawsuit between the Respondent and his former partners at item # 4 and there is nothing in her affidavit which indicates why it is necessary for her to contact the firm about the Respondent. Similarly, her request for authorization to contact the Respondent and his accountants is premature at this point.
[67] If the financial material I have ordered produced gives rise to questions for Ms. Russell, she can advise Mr. Wilson who will make the request of Mr. Niman. If counsel cannot agree on whether it is necessary to have Ms. Russell speak to the Respondent or his accountants, I may be contacted for further directions.
Respondent’s motion for questioning of the Applicant and of the mother
[68] Rule 20 of the Family Law Rules governs questioning. Rule 20(5) deals with motions for questioning and states that an order for questioning may be made 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.
[69] Mr. Wilson objects because Mr. Niman did not request questioning at the case conference in November and has not written setting out the information he requires. He submits that the Applicant will answer questions or produce documents requested.
[70] Counsel agree this is an unusual case with novel aspects. In a real sense, it has appeared “out of the blue” after some 15 years of no contact between the Respondent and the mother of the Applicant, J.M. The Applicant seeks to set aside an agreement that the parties have been abiding by since the Applicant’s birth. The trial date is imminent. I cannot think of a more compelling case for an order for questioning of the Applicant and of J.M. prior to trial.
[71] Surely the Respondent is entitled to know the case he has to meet at trial. For reasons that are not clear, J.M., who has been added as a party, has not delivered pleadings and has not participated in this litigation. The Respondent cannot be expected to go to trial and hear the evidence of the mother for the first time in the witness stand. In my view, that would be unfair. The conditions set out in Rule 20(5) have been complied with. There is no other way the Respondent can secure the information from J.M. other than by having her answer questions under oath before the trial. The suggestion that the Applicant can answer questions in writing is not appropriate on the facts of this case. It is the Applicant who is bringing this litigation requesting the setting aside of the Agreement and significant monies from the Respondent. The Respondent is entitled to question the Applicant in advance of trial. There is no evidence that questioning would cause undue delay or expense. I therefore order that the Applicant and the Respondent J.M. shall attend for questioning on a date agreed to by counsel.
Respondent’s motion for production of the file of Linda Silver-Dranoff
[72] The Respondent seeks production of the file of Linda Silver-Dranoff, the solicitor who acted for J.M. on the agreement. In his affidavit sworn November 29, 2013 the Respondent makes reference to a letter from Silver-Dranoff which states, “I cannot imagine under what circumstances given our agreement any support order would be given against [the Respondent] and in those circumstances, surely the Agreement would be taken into account as well as all the circumstances at the time.” He deposes that he relied on the representations made by Silver-Dranoff when considering whether to sign the agreement.
[73] The materials of the Applicant do not address the request for production of the file of Silver-Dranoff. There is nothing from the solicitor setting out her position on its production.
[74] Silver-Dranoff provided independent legal advice to the mother with respect to the negotiation and execution of the agreement that is at the heart of this litigation. She signed the certificate and affidavit of Independent Legal Advice on March 26, 1999 confirming that the Respondent J.M. was fully aware of the nature and effect of it on her present and future circumstances.
[75] In Griffore v. Adsett (2001), 2001 28207 (ON SC), 18 R.F.L. (5th) 63, Justice Mackinnon stated, at paras. 20-21, “I also ruled that the solicitor’s certificate and affidavit of Independent Legal Advice is, in fact, a waiver of solicitor/client privilege as to the matters addressed in it. These solicitors’ certificates and affidavits are an integral part of the contract. They are exchanged in order to protect the integrity of the agreement, with the expectation that each party to the contract can and will rely on the other party’s solicitor’s affidavit and certificate in order to enhance the enforceability of the contract. In my view, if parties to a marriage contract were permitted to have their lawyers swear a certificate and affidavit… but then to claim privilege when the contract is sought to be set aside on the same issues as covered in the certificate, that would compromise, in a serious way, the utility of having the affidavit tendered in the first place. Fairness and the intent of the parties at the time of the contract require a ruling that privilege is waived as to the matters addressed in the solicitor’s certificate and affidavit.” I agree with these statements.
[76] Here, the enforceability of the contract is at issue and the understanding of the Respondent J.M. at the time of signing of the agreement is relevant. Thus, the solicitor/client privilege has been waived by Silver-Dranoff and, in my view, fairness dictates that the lawyer’s file ought to be produced.
Applicant’s motion for an order striking out paragraphs of the affidavit of the Respondent of November 1, 2013 and of the Answer dated November 8, 2013
[77] Rule 14(22) of the Family Law Rules states and the court may 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. Counsel for the Applicant moves to strike paragraphs 13-22 and 35 of the Answer of the Respondent dated November 8, 2013. He also wishes to strike paragraphs 6-14 of the November 1, 2013 affidavit of the Respondent, which are identical to the aforementioned paragraphs of the Answer.
[78] It is not entirely clear the basis for the Applicant’s request to strike out portions of the Answer. Pleadings provide the framework for the lawsuit and set out a party’s position. I agree there is no place for irrelevant facts in pleadings. The impugned paragraphs deal with the events leading up to the signing of the Agreement and the resolution of litigation the Respondent was involved in with his former law firm. The Applicant has filed affidavits in which she deposes that she fails to understand how the events giving rise to the Agreement are relevant or why her mother is “being dragged into this proceeding.” These statements are of no assistance to me in my determination of the propriety of the pleadings.
[79] In my view, paragraphs 13-22 of the Answer and paragraphs 6-14 of the November 1, 2013 affidavit of the Respondent (which mirror the paragraphs of the Answer) are proper. They make reference to the Agreement which the Respondent relies on in resisting this application. These paragraphs, it seems to me, concisely set out his position on how the agreement was arrived at and why he signed it. I expect that much of what is set out in these paragraphs will be his evidence at trial.
[80] In the application, the Applicant makes reference to the agreement that was signed by her parents prior to her birth. Clearly, it is a relevant and indeed a critical document to this litigation so I fail to understand how the Respondent’s pleading dealing with the circumstances surrounding the signing of the agreement can be found to be irrelevant.
[81] Similarly, paragraph 35 deals with the settlement of the litigation with his former law firm and how the funds were used, to some extent. In her application the Applicant makes reference in paragraph 14 to the payment the Respondent received from his former law firm and she goes on to allege, “I believe he has more than enough money to contribute to my support.” Since ability to pay is a consideration the Court reviews in support applications and the Applicant has made reference to the litigation the Respondent was involved in which resulted in payment to him in her own materials, how can his response to this be deemed irrelevant? The Answer is a proper pleading with the exception of the reference to the brother of Mr. Wilson in paragraph 35, which in my view is improper. The reference to the brother shall be struck so the first line of paragraph 35 of the Answer reads “The partners of the firm and D.C. agreed to part ways.”
Applicant’s supplementary motion to strike further paragraphs and for Summary Judgment dismissing the claim of the Respondent as contained in paragraphs 6 and 7 of the Answer
[82] I will say at the outset that the practice of serving a supplementary motion seeking 4 further orders of the court just days before the return date of the original motion, which was already a lengthy motion, is not to be encouraged. Mr. Wilson asks for further paragraphs of another affidavit of the Respondent to be struck out and as well for Summary Judgment to dismiss the Respondent’s claims as contained in paragraphs 6 and 7 of his Answer.
[83] The Applicant asks that paragraphs 4, 10-12, 23 and 27 of the affidavit of the Respondent sworn November 29, 2013 be struck. I decline to do so. These paragraphs, for the most part, simply reiterate what the Respondent has pleaded in his Answer concerning how the agreement came into existence and his position on the role played by the mother. These paragraphs are not irrelevant, nor are they inflammatory or a threat to the fair trial of this action. Rather, they set out the position taken by the Respondent to the claims asserted in this litigation, which is what pleadings ought to do. The Applicant must know the case she will meet at trial and in my opinion, these paragraphs comply with this requirement and do not offend the Rules.
Summary Judgment
[84] The Applicant requests an order pursuant to Rule 16(1) of the Family Law Rules for summary judgment dismissing the Respondent’s claims contained in paragraph 6 and 7 of his Answer. Those claims are for an order enforcing paragraph 15 of the Agreement which requires the mother to pay the Respondent the sum of $37,500 plus legal fees in the event of a breach of the agreement or in the alternative, for an order the mother has to indemnify the Respondent for any child support obligation he may be found to have.
[85] Rule 16 provides that a party may bring a motion for Summary Judgment prior to trial. The rule provides under subsection 4 that the moving party shall serve an affidavit showing there is no genuine issue requiring a trial. Subsection 12 states that the court may decide a question of law before trial if it would substantially shorten the trial or save substantial costs.
[86] I am perplexed by the addition of a motion for Summary Judgment at the eleventh hour just prior to the hearing of a long motion for other relief. This view is reinforced when I consider that the parties were given an expedited trial date and the trial will be heard within 4 months of the delivery of the Answer of the Respondent.
[87] Summary Judgment is available to parties to provide a quick, cost efficient manner of dealing with claims where there is no genuine issue for trial. While I appreciate the Court’s powers for granting summary judgment were expanded with the introduction of the amendments to the Rule governing Summary Judgment in 2010, the court must still decide whether it is necessary for a matter to go to trial in order to fully appreciate the evidence and the issues posed in the case: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.
[88] Mr. Wilson argues that parents cannot barter away rights to child support through the signing of an agreement: Willick. Thus, the requests in paragraphs 6 and 7 of the Respondent’s Answer have no merit and ought to be struck so they do not form part of the trial.
[89] Mr. Niman in response submits that the Applicant cannot bring this motion since the relief sought in the Answer relates to the mother and not to the Applicant.
[90] In my view, the motion for Summary Judgment that is brought by the Applicant is ill-conceived. While I accept the law is clear that the court is not bound by the terms of an agreement signed by parents when exercising its jurisdiction to award support, this is an unusual application by a minor claiming child support dating back to her birth. The Respondent denies the claim and relies on the provisions of the agreement he signed with the Applicant’s mother prior to the child’s birth dealing on a final basis with child support. The mother, while she has been added as a party to this litigation, has not delivered pleadings. I have no idea what her evidence is or will be surrounding the execution of the agreement or the intentions of the parents. The evidence from the parties on the motions before me does not suggest there will be consensus on factual matters concerning the signing of the Agreement.
[91] More importantly, I am in no position as a motions judge to determine whether paragraph 15 of the Agreement ought to be enforced; that is for the trial judge who will be in a proper position after hearing evidence and the witnesses to make such a determination. It is trite law to state that when credibility findings have to be made and there is conflicting evidence before the court, such matters ought not to be decided on motions: Ierullo v. Ierullo, 2006 33301 (ON CA), [2006] O.J. No. 3912 (C.A.).
[92] Furthermore, I agree with the comments made by the court in Palmer v. Palmer, [2003] S.J. No. 671 (Q.B.), relied on by the solicitor for the Respondent. The court noted, at para. 12, “A court on an interim application must be careful not to pre-judge the issue and thereby usurp the role of the trial judge. To vary an agreement that the parties have relied upon in structuring their affairs on an interim basis would, in most circumstances, be unfair… Except in exceptional circumstances, agreements should be respected and upheld until trial when the circumstances surrounding the agreement can be fully canvassed.”
[93] The trial judge will give consideration to the agreement signed by the parents in this case. As was noted in Charpentier v. Lascelle, 2006 SKQB 305, [2006] S.J. No. 429 (Q.B.), at para. 13, “That is not to say that the agreement between the parties has no relevance… while it is true that parents cannot contract out of child support obligations and that child support is always open for review by the court, the fact that it is open to review does not preclude the court from considering a reasonable arrangement that the parties entered into voluntarily, with full disclosure and with the advice of counsel.”
[94] What Mr. Wilson is asking me to do in this motion for Summary Judgment is to make a determination of the force and effect of the agreement that was signed in 1999. I am not prepared to do so as the agreement is central to this application and I would be usurping the role of the trial judge. Further, the evidence is conflicting and the matter has not been framed in a way that is amenable to a finding by the court on a summary judgment motion. I cannot say that there is no genuine issue for trial and the motion for Summary Judgment must be dismissed.
Costs
[95] If the parties cannot agree on costs, I may be contacted.
D.A. Wilson J.
Date: January 24, 2014