SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 15D-0008

DATE: 2015-10-28

RE: William James Hutton, Applicant.

AND:

Cynthia Anne Hutton, Respondent.

BEFORE: Honourable Justice Timothy Ray.

COUNSEL: Caroline E. Kelly, Counsel, for the Applicant.

Virginia G. Ollerhead, Counsel, for the Respondent.

HEARD: October 28, 2015

ENDORSEMENT

[1] The applicant’s motion dated September 4, 2015 seeks to strike several paragraphs of the respondent’s Answer on the grounds that they offend Rule 1 of the Family Law Rules, and Rule 25 of the Rules of Civil Procedure. Specifically, the applicant contends the impugned pleadings are irrelevant; and under the circumstances are prejudicial, scandalous, embarrassing, and will delay the fair trial.

[2] A cross-motion was served October 13, 2015 seeking leave to file an Amended Answer and encloses a draft which proposes to remove 6 of the 10 impugned paragraphs. A motion returnable September 14, 2015 had been launched by the respondent claiming spousal support and significant disclosure from the applicant.. The applicant has not responded in his affidavit to the impugned portions of the Answer or the affidavit in support of the respondent’s motion. He seeks an adjournment to add additional affidavit evidence in the event the motion to strike is unsuccessful.

[3] The applicant’s Application dated January 8, 2015 claims divorce, equalization of net family property, sale of family property, an order for partition and sale of the matrimonial home, occupation rent from the respondent, special and extraordinary expenses for the children from the respondent, and costs. The respondent’s Answer claims spousal support plus insurance and health insurance, child support, equalization of net family property, exclusive possession of the matrimonial home, and costs.

[4] According to the pleadings, the parties are 51 and 55 respectively have three children aged 20, 22, and 25; and were married September 21, 1985. They separated July 16, 2011, and currently reside in Renfrew County. All of the children are pursuing post-secondary education in Ottawa, Toronto, and Guelph. The respondent continues to reside in the matrimonial home. The applicant is employed. The respondent is not.

[5] The applicant seeks to strike the following from the Respondent’s proposed Amended Answer:

a. Paragraph 21- The Respondent was required to undergo a therapeutic abortion in 1983. She struggled both physically and emotionally and became suicidal and depressed. Unable to focus and concentrate on her studies, she was compelled to withdraw from University.

b. Paragraph 27: The Husband was physically and emotionally abusive towards the Wife throughout their relationship. He is dominating and controlling and has a volatile temper which often manifest itself in physical abuse.

c. Paragraph 34: The Wife continues to struggle daily from the emotional, verbal and physical abuse she endured at the hands of her Husband of 26 years. The abuse was systematic and continuous and has had a devastating impact on her confidence, feelings of self-worth, ability to concentrate and focus and on her wishes to retrain and find gainful employment. Moreover, since separation. The Wife has had no financial security and inadequate support to enable her to upgrade her training and education.

d. Paragraph 40: …....the Husband has been both physically and emotionally abusive towards the Wife during their relationship.

[6] I take it as a given that the 6 paragraphs that the respondent seeks to delete from her Answer are an explicit acknowledgement by the respondent that they offend the rules of pleading. An order is to go permitting the respondent to deliver an Amended Answer in accordance with the draft appended to her factum, subject to my decision which follows. I note that the respondent’s affidavit – the evidence- repeats a good deal of the allegations contained in the original Answer, now deemed irrelevant by virtue of the Amended Answer.

[7] The law in family law cases concerning pleadings is the same as in non-family civil matters – that is to say - relevance. However, in view of the personal emotional issues that generally drive the legal issues, the courts have taken a more relaxed approach and tolerate an expanded view. The dramatic increase in non-legally trained self-represented litigants has hastened this relaxed approach to the point that lawyers are frequently persuaded by their clients to adopt a stance that the opposite party must be portrayed as an evil person in order to guarantee success. This inevitably requires that every real or imagined slight or disagreement is seen to take on major significance in support of the description of the opposite party. As might be expected, the opposite party feels obliged to retaliate. The real issues become lost in the accusations, denials, counter-accusations, and counter denials. Each party’s perceived baggage and the rights and wrongs of it all become the cross the court must bear- running the risk of obscuring the real issues. In other words, the battle becomes the central focus - not the outcome.

[8] On the one hand, it can be argued that family law disputes for the most part are so fraught with emotion that we should patiently focus on the issues without regard to the clear violations of the rules. On the other hand, lawyers must take some responsibility and resist the temptation to be the hired gun whose mandate is to destroy the reputation (if not all the worldly goods) of the opposite party. I accept that a lawyer who adopts this principled legal approach may have an unhappy client. However the alternative demeans our legal institutions and those who tirelessly work to make it the backbone of our democratic society. Pleadings are rarely attacked in family law matters. More care should be taken to assure that the pleadings comply with the rules.

[9] At the pleadings stage, relevance is determined by the legal and factual issues. These are turn determined by the relief being sought. All relevant facts must be pleaded but not the evidence to prove the facts. Irrelevant facts must be struck from a pleading in order to limit the evidence to the issues in the case. For the purpose of a pleadings motion the allegations are taken to be true.

[10] The respondent’s position is that this case is largely about spousal support and therefore all of the allegations are relevant.

[11] Paragraph 21 of the respondent’s Amended Answer describes a medical procedure that occurred before the parties were married. The respondent argues that the plea is important to show why she did not pursue university 30 years ago. Either she did or did not pursue university 30 years ago. The invocation of this medical procedure is irrelevant. While the respondent’s language invites an inference against the applicant, no allegation is made against him. Even if there were an explicit allegation against him, I cannot see the relevance of this allegation to the relief being sought. It is ordered struck.

[12] Paragraph 27 addresses an allegation by the respondent that the applicant was abusive to her over the course of the marriage. No claim is made for relief arising out of the allegation, and is not relevant to any of the claims being made by the applicant or the respondent. These portions of the Amended Answer are not relevant and must be struck. Ordered accordingly.

[13] Paragraph 34 is as follows: The Wife continues to struggle daily from the emotional, verbal and physical abuse she endured at the hands of her Husband of 26 years. The abuse was systematic and continuous and has had a devastating impact on her confidence, feelings of self-worth, ability to concentrate and focus and on her wishes to retrain and find gainful employment. Moreover, since separation the Wife has had no financial security and inadequate support to enable her to upgrade her training and education. The context of this portion of the pleading is the respondent’s ability to seek and obtain employment. It responds to the applicant’s pleading that the respondent has not worked nor sought employment in the four years since separation, although capable of doing so. I emphasize that the relevance of the respondent’s plea is the alleged effect on the respondent of the alleged abusive treatment and her ability to work, not the applicant’s conduct.[^1] Her entitlement is not in issue. It is the consequences of the spousal misconduct that is relevant, not the attribution of fault. Except for the last sentence in the paragraph which is relevant, the paragraph is struck on the ground of relevance with leave to the respondent to amend the paragraph to include only the following plea: The respondent suffers from a lack of confidence, feelings of self-worth, ability to concentrate and focus and on her wishes to retrain and find gainful employment. This paragraph, except for the last sentence is struck with leave to amend as noted.

[14] Paragraph 40- The thrust of paragraph 40 is a claim for exclusive possession of the matrimonial home. While the respondent argues that section 24 of the Family Law Act stipulates that violence is a factor in such a claim, there is nothing in the plea that links the allegation of abuse to the claim for exclusive possession which is being brought four years after separation. It cannot be that an enquiry must be permitted concerning violence in the marriage every time it is alleged in a case for exclusive possession. While the section appears to be mandatory, the pleading must show some relationship or reason connected to the exclusive possession claim. Instead it appears as a bare allegation of mistreatment by the applicant over the course of the marriage. The impugned portion of the paragraph is struck with leave to amend if counsel is so advised.

[15] Any references or allegations in the respondent’s affidavit which rely upon the impugned paragraphs in the respondent’s answer are hereby expunged.

[16] The parties may make submissions on costs.

Honourable Justice Timothy Ray

Date: October 28, 2015

[^1]: Leskun v Leskun, 2006 SCC 25, [2006] SCJ No. 25, SCC 25 (SCC) paragraph 21.