Superior Court of Justice – Ontario

Family Court

CITATION: Campbell v. Wentzell, 2015 ONSC 6097

COURT FILE NO.: FD1787/13

DATE: October 2, 2015

RE: Adam Edward Campbell, applicant

AND:

Katie Wentzell, respondent

BEFORE: MITROW J.

COUNSEL: Peter Eberlie for the applicant Jennifer Wall for the respondent

HEARD: September 30, 2015

ENDORSEMENT

[1] The applicant brings a motion for an order requiring Doug Wentzell, the respondent’s father (“Mr. Wentzell”) and Chad Power (“Mr. Power”) to attend for oral questioning. Mr. Wentzell and Mr. Power are non-parties.

[2] Mr. Power is described as the respondent’s boyfriend and he is a police officer with the City of London.

[3] This is a high conflict case. Both parties have incurred significant legal fees so far. The applicant’s fees are in the range of $163,000 and have been paid by his father. The respondent has incurred fees of $78,000 since March of 2015, plus fees from her previous counsel. The respondent is now self-represented, deposing she is unable to afford to hire a lawyer. It is noted that Ms. Wall did appear for the respondent on this matter but her firm is no longer on the record. Ms. Wall’s appearance was only in relation to the applicant’s motion to compel oral questioning of Mr. Power and Mr. Wentzell.

[4] The high conflict is further evident in the fact that the applicant has a retained private investigator to conduct surveillance evidence, including surveillance of the respondent’s residence to see if Mr. Power lives there. There is evidence from the applicant that the surveillance evidence was expensive, although he did not disclose the amount paid.

[5] In her recent endorsement on various motions argued by the parties, Mitchell J. commented that the parties need a final resolution of issues in this case and her order included that the trial of this matter be scheduled forthwith at the next assignment court.

[6] For reasons that follow, the applicant’s motion is dismissed, with the exception of the requirement of Mr. Wentzell to provide an affidavit that deals with several issues as described in more detail below.

BRIEF BACKGROUND

[7] The parties were married to each other in 2009.

[8] The parties have one child, a daughter, born June 25, 2013. The parties separated in October 2013 soon after the child was born. An existing interim order provides that the child is in the primary care of the respondent and the applicant has interim access.

PRELIMINARY ISSUE

[9] Both Mr. Wentzell and Mr. Power were served personally with the applicant’s motion. Neither Mr. Power nor Mr. Wentzell served any material, nor did they appear on the motion either personally or by counsel.

[10] The applicant submits that the motion is “undefended” and, on that basis, argues that the relief sought should issue.

[11] The respondent filed an affidavit in response to the applicant’s motion and explained in some detail why the relief sought by the applicant to compel Mr. Power and Mr. Wentzell to attend for oral questioning should be dismissed.

[12] It was put by Ms. Wall on behalf of the respondent that the respondent is “the captain of the litigation” and that she has a right to appear on the motion and to defend the motion.

[13] In family law litigation, context, in particular, can become germane. The parties sought to be examined are close personal relations to the respondent – her father and her boyfriend. It is not surprising that the respondent has chosen to defend the motion.

[14] I am unable to accept Mr. Eberlie’s submission that this should be treated as an undefended motion. There is nothing in the Family Law Rules, O. Reg. 114/99 (the “Rules”) that would suggest that the respondent is prohibited from defending the motion in circumstances where neither Mr. Wentzell nor Mr. Power have filed material or appeared.

[15] One of the factors in dealing with cases “justly” is to minimize costs. I find, in the circumstances of this particular case, that it was not unreasonable for Mr. Power and Mr. Wentzell to take the position that they would not have to personally file affidavits to defend the motion, that they would save costs by not hiring lawyers, and that instead they would “shelter” under the respondent’s defence to the motion.

[16] Accordingly, I do not treat this as an undefended motion.

THE LAW

[17] Rule 20(5) is as follows:

20(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.

[18] The primary objective of the Rules is to enable the court to deal with cases justly: r. 2(2).

[19] The court is required to apply the Rules to promote the primary objective and the parties and their lawyers are required to help the court to promote the primary objective: r. 2(4). Rule 2(3) explains the meaning of dealing with cases justly:

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.

[20] In Zafir v. Diamond, 2008 CarswellOnt 2030 (S.C.J.), J. Wilson J. dealt with a motion pursuant to r. 20(5), where the husband sought an order to question the parents of his wife. I agree with and adopt the following discussion by Wilson J. in paras. 20-22:

20 The Family Law Rules encourages disclosure but discourages the traditional and aggressive litigious approach to family litigation by requiring a court order for questioning of parties, let alone third parties.

21 I concur with the views of Mesbur J. in Serra v. Serra court file No. 03-FA-283274 that questioning is the approach of last resort:

The wording of the rule is similar to rule 31.10(1) of the Rules of Civil Procedure and the jurisprudence under it is helpful, as well as the thrust of the Family Law Rules. The thrust of 20(5) is that questioning should be a last resort, a step to be taken only after reasonable requests for documentary disclosure has been attempted and exhausted. (McLeod et al. Ontario Family Law Rules Annotated-2004).

22 I adopt also the approach of Czutrin J. in Boyd v. Fields, [2007] O.J. No. 5262 at paragraph 6 and 7. He confirms the importance of disclosure, but also confirms that alternatives to questioning should be explored. The right to question is not automatic:

Questioning is but one method of obtaining information from a non-party. The Rule also provides for affidavits "or by any other method about any issue in the case" and then three conditions are set out.

This Rule must be considered in context of the objectives of the Family rules including:

(i) The Family Rules do not allow for a general right to question, even a party, but is specific as to when there is a right to question without an order.

(ii) An order is required here for both party and non-party questioning.

(iii) Questioning when ordered has to relate to an issue in the case.

(iv) Where a non-party is ordered to be questioned it is to be about an issue between the parties.

[21] In family law matters, especially at case conferences, it is not unusual to make orders for oral questioning of the parties. In fact, in many cases, both parties wish to have that order and consent to same.

[22] In a general sense, in many family law cases, it is not difficult to muster an argument that it would be unfair for a party who wishes questioning to carry on the case without it. Similarly, it is usually not difficult to meet the requirement of paragraph 2 in r. 20(5) in relation to oral questioning between the parties and, similarly, paragraph 3 can usually be met because of the argument that disclosure through oral questioning will assist in narrowing and focussing the issue and therefore saving time and expense.

[23] However, where oral questioning ventures into non-parties, then it may become more difficult to meet all of the conditions in r. 20(5).

[24] As discussed in more detail below, a significant obstacle for the applicant in the present motion is the failure of the applicant, in his initial affidavit filed in support of his motion, to set out in that affidavit sufficient evidence that satisfies the three criteria in r. 20(5).

[25] Many of the issues that the applicant wanted to question Mr. Power and Mr. Wentzell on simply were not relevant to the issues between the parties or the information was available from other sources.

DISCUSSION

[26] The applicant filed two affidavits in support of his motion: his supporting affidavit served with the motion (the “initial affidavit”) and his later affidavit filed in reply (“reply affidavit”).

A. Applicant’s Request to Question Mr. Wentzell

[27] The applicant sets out in detail in his initial affidavit the issues that he wants to question Mr. Wentzell about; paragraphs 4(a) to (k) inclusive describe each of the 11 issues.

[28] In relation to both Mr. Wentzell and Mr. Power, the respondent did complain that much of the applicant’s reply affidavit was improper reply. There is much substance to this submission. The applicant’s initial affidavit was quite brief, with no transcript references. The applicant in essence “split” his case; the applicant is in breach of paragraphs 1 and 3 of r. 14(20); although no motion to strike was brought, I do take this into account in attributing weight to the applicant’s reply affidavit.

[29] The initial affidavit seeks to question Mr. Wentzell as to what business he has done with the applicant, the applicant’s father, or any company owned by the applicant’s father, and particulars of the loan between Mr. Wentzell and the applicant’s father. Those matters have little, if any, relevance to the matrimonial litigation and, further, do not meet the criteria in paragraphs 1 and 2 of r. 20(5). All this information would be known to the applicant or the applicant’s father.

[30] The applicant seeks to question Mr. Wentzell regarding the particulars of the purchase of her Crossfire motor vehicle by her parents.

[31] The prime fact gathering process in matrimonial litigation should focus on disclosure between the parties, including oral questioning of the parties, before casting the litigation net to bring in the parties’ other family members, friends, partners or other persons who are supports.

[32] The parties have submitted to four days of oral questioning; the respondent was questioned for two days.

[33] In carrying out the primary objective of the Rules, the court must be mindful of the potential effects of escalating the emotionally charged atmosphere of family law litigation if family members and others become part of the oral questioning discovery process.

[34] Regarding the Crossfire purchase, the applicant’s initial affidavit leads no evidence about the efforts to question the respondent about this. On that basis alone, the request to question Mr. Wentzell about this issue should be dismissed. The applicant’s reply affidavit assists very little. The only transcript reference is asking the respondent to confirm she owned the vehicle, which she did confirm. There is no evidence led by the applicant as to any other questions asked of the respondent about the Crossfire purchase. Paragraphs 1 and 2 of r. 20(5) have not been satisfied.

[35] The applicant seeks to question Mr. Wentzell about the incident when the Lexus motor vehicle was retrieved by the applicant. Both the applicant and his father were present, as was the respondent. The respondent’s transcript (in the applicant’s reply affidavit) reveals she was questioned about whether her father was there, and she was not sure, initially recalling he was not there. I would have been inclined to dismiss this request (given that the applicant and his father were there and had knowledge of the events, and also given the failure to also comply with paragraph 1 of r. 20(5)), but for the fact that the transcript shows that the respondent needed to check with her father and indicated she would do so. This, in my view, constitutes an undertaking. However, it is not necessary to conduct oral questioning.

[36] I order Mr. Wentzell, within 21 days, to provide an affidavit confirming whether he was present on the occasion when the Lexus motor vehicle was picked up by the applicant and his father and, if so, providing all the details of his recollection of the event, including who handed over the keys to the Lexus.

[37] The applicant seeks to question Mr. Wentzell about the purchase of 1265 Staffordshire Road and particulars as to who did the renovations and at whose cost. Again, the applicant’s initial affidavit leads no evidence as to the extent to which the respondent was questioned about this. The reply affidavit contains only a brief excerpt from the transcript when the respondent deposes her father “gifted” her the basement. Given that the respondent was questioned for two days, I am not satisfied on the evidence on the motion that this issue was fully explored with the respondent; I am not satisfied that paragraphs 1 and 2 of r. 20(5) are met.

[38] The applicant, in his initial affidavit, seeks to question Mr. Wentzell about “the relationship with Mr. Power.” This appears to refer to the respondent’s relationship with Mr. Power. I fail to see why Mr. Wentzell needs to answer these questions. These are questions to be put to the respondent. It is also a very broad topic. In many cases, family members have knowledge about a party’s relationship with another person. Are they all to become non-party witnesses on oral questioning? The applicant has failed to satisfy paragraphs 1 and 2 of r. 20(5).

[39] For similar reasons, there is no merit to the applicant’s request to question Mr. Wentzell about the cohabitation agreement between the applicant and the respondent, and the “conduct of his daughter, the Respondent.” There is no evidence on the motion as to what information Mr. Wentzell has about the respondent’s cohabitation agreement that would not be known to the applicant or could not be obtained also from the respondent; the latter request is simply too broad and is something that the respondent should be questioned about to the extent it is relevant. Forcing parents of parties to submit to oral questioning generally about their adult children’s “conduct” in family law cases is most unlikely to contribute to the primary objective set out in r. 2(2).

[40] Again, for similar reasons, there is no merit to the applicant’s request to question Mr. Wentzell as to the times he babysat for the respondent, and issues regarding transportation of the child. There is no evidentiary basis in the applicant’s initial affidavit satisfying paragraphs 1 and 2 of r. 20(5). The reply affidavit contained a transcript excerpt dealing with questions put to the respondent about her parents assisting with transportation of the child, but that evidence does not assist the applicant in any material way.

[41] The applicant seeks to question Mr. Wentzell as to particulars of all loans, gifts, and payments made to the respondent by her parents since date of separation. Both the applicant and respondent agree that the respondent gave an undertaking to provide this information; this undertaking remains unfulfilled. The applicant in his reply states that this information was due 30 days after oral questioning on “June 30.” The applicant could have, but was not required, to bring a motion to compel compliance with the undertaking. He chose instead to get this information directly from Mr. Wentzell. It was the applicant’s right to do so. However, again, oral questioning is not necessary. Mr. Wentzell is ordered to include in his affidavit (already ordered to be provided) particulars of all gifts, loans and payments made to the respondent by her parents subsequent to the date of separation.

B. Applicant’s Request to Question Mr. Power

[42] The applicant seeks to question Mr. Power about his investigation of a collision between a vehicle the applicant was in and a vehicle driven by the respondent. The applicant also seeks to question Mr. Power about his role in the police investigation of the applicant and the applicant’s arrest in June 2014. Police records for both incidents have been produced.

[43] The applicant is clear in his affidavit that he intends to sue the London Police Service and Mr. Power. The request to question Mr. Power in relation to the above matters raises a clear inference, as argued by the respondent, that the applicant wants to question Mr. Power as a form of discovery for his anticipated lawsuit. It is difficult to connect these matters to any relevant issues in the family law litigation. Also, the applicant has failed to satisfy paragraph 1 of r. 20(5).

[44] The applicant seeks to question Mr. Power on whether he was residing with the respondent. In his reply affidavit, the applicant attached transcript excerpts from the respondent’s oral questioning. The respondent’s evidence was that Mr. Power did not live with her, although he did spend time at her residence. The applicant hired investigators and produced surveillance reports that he alleges showed that Mr. Power was residing with the respondent.

[45] The relevance of the issue as to whether Mr. Power was or was not residing with the respondent is questionable. Exclusive possession of the matrimonial home is no longer an issue as the matrimonial home was ordered sold recently. Even assuming that this issue is relevant, I am unable to find that the applicant has complied with paragraph 1 of r. 20(5); also in relation to paragraph 2 of r. 20(5), the applicant has independent evidence via the surveillance and he has also questioned the respondent.

[46] The applicant seeks to question Mr. Power about his role in providing a vehicle to the respondent, and payments he made either to the respondent or on her behalf. That information could have been obtained from the respondent. The applicant has not satisfied paragraphs 1 and 2 of r. 20(5).

[47] The applicant seeks to question Mr. Power about his “smoking habits and alcohol consumption.” I agree with the respondent that this is nothing but a “fishing” expedition; there is no satisfactory evidentiary basis established by the applicant on the motion that this is a relevant issue and, further, paragraph 1 of r. 20(5) is not complied with.

[48] The applicant wants to question Mr. Power about “comments he [Mr. Power] made to Ms. Mejia” about the applicant. No evidence is adduced in the applicant’s initial affidavit even remotely explaining how this is relevant. No evidence is given as what was allegedly said. No explanation is offered who Ms. Mejia is, or how anything Mr. Power may have said to her about the applicant is relevant in the family law proceeding. Further, this request does not comply with paragraph 1 of r. 20(5).

[49] Finally, the applicant wants to question Mr. Power about babysitting the child. The respondent could have been asked about this. No evidentiary basis is found in the applicant’s initial affidavit complying with paragraphs 1 and 2 of r. 20(5).

ORDER

[50] For reasons explained above, the applicant’s motion is dismissed with the exception of the requirement that Mr. Wentzell shall provide affidavit evidence within 21 days in relation to the topics set out earlier in these reasons.

[51] In relation to costs, counsel were asked during the hearing of the motion to advise as to the costs that were sought, in the event that each party was successful.

[52] The result on the motion is that the respondent was primarily successful in defending the motion, other than that portion of the order that requires Mr. Wentzell to file an affidavit. Although there was some “divided success,” the respondent was far more successful than the applicant and is entitled to costs.

[53] The respondent sought $3,000 all inclusive if successful. Considering the factors in r. 24(11), I find that a reasonable amount of costs is $2,500. I order the applicant to pay to the respondent costs of the motion, forthwith, fixed in the amount of $2,500 inclusive of HST and assessable disbursements.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: October 2, 2015