Court File and Parties
COURT FILE NO.: FS-19-007443 DATE: 20190402 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Patrice A.J. Cote Applicant – and – Asha Cote Respondent
Self-Represented Self-Represented
HEARD: April 2, 2019
Shore, J.
[1] This was a motion, brought by the Respondent, Asha Cote, for an order striking the Application. For the reasons set out below, the Application shall be struck as an abuse of process, under Rule 1(8.2) of the Family Law Rules, and specifically as it is a waste of time and an abuse of the court process.
Facts
[2] The parties separated in 2009. Following separation, Mr. Cote issued an Application, being court file no. FS-12-380746. Ms. Cote filed an answer but did not make any claims with respect to the matrimonial home. In August 2016, Ms. Cote made Mr. Cote aware of the fact that she would be amending her pleadings to include a trust claim in the matrimonial home. There is a long history of litigation that follows. The file remains open and active.
[3] On January 15, 2019, the Applicant issued this Application. The only relief she is seeking relates to her beneficial interest in the matrimonial home.
[4] Below is a summary of the events in the other file, as it relates to the motion before me.
a. August 2016 – Ms. Cote makes Mr. Cote aware that she intends to amend her pleadings to include a claim with respect to the matrimonial home. b. October 20, 2017 – Justice Stewart made an order allowing Ms. Cote to bring a motion amend her pleadings. c. March 27, 2018 – Justice Kiteley orders that given that Ms. Cote did not comply with Justice Stewart’s order, she ought not be permitted to amend her pleadings. d. May 28, 2018 – Justice Kiteley confirms that she can ask the trial judge for leave to amend her pleadings, even though there is a previous order not permitting her to bring a motion beforehand for same. e. October 25, 2018 – Justice Kiteley allows Ms. Cote to bring a motion for leave to amend her pleadings. f. November 1, 2018 – Mr. Cote brought an unsuccessful motion to stay Justice Kiteley’s order pending the appeal and the deadline for bringing the motion for leave to amend was extended. g. December 19, 2018 – Justice Kiteley made it clear that Ms. Cote’s motion for leave to amend her pleadings would have to wait until the appeal had been heard by Divisional Court. Included in the Order was a provision that neither party may bring any motion for any relief without her permission.
[5] Mr. Cote has appealed the last two orders of Justice Kiteley. This matter is now before the Divisional Court.
[6] On January 15, 2019, Ms. Cote commenced this Application, the only claim being her alleged trust interest in the matrimonial home.
Analysis
[7] Ms. Cote objects to Mr. Cote’s motion proceeding today, as the parties have not attended a case conference. However, Rule 14(4.2) of the Family Law Rules provides that no motion may be brought prior to a case conference except “if the court is of the opinion….that a case conference is not required for some other reason in the interest of justice”. It is in the interest of justice to hear this motion prior to the parties having to complete the pleadings and attend at a case conference.
[8] Rule 1(7.1) provides that certain orders may be made at any time, including orders under Rule 1(8.2). Rule 1(8.2) provides that “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.”
[9] Ms. Cote’s new pleadings go to the very issue of the matters that are currently before the Court (and the appeal court) in file No. FS-12-00380746. Ms. Cote alleges that she started her proceedings to preserve her claim due to the ten year limitation period.
[10] Ms. Cote’s new proceedings offends the rule against collateral attacks and is therefore an abuse of process. In this case, Ms. Cote is attacking the validity of the orders in the other case by seeking a different result in a different forum, rather than waiting for the appeal process to hear this matter through. The relief she is seeking in her Applicant is identical to the relief she is seeking in the other proceedings. She has brought a motion for leave to amend her pleadings in the earlier proceedings, specifically asking for the identical relief as it relates to a beneficial interest in the matrimonial home. Collateral attacks in subsequent proceedings is a form of abuse of the court’s process. It is manifestly unfair and would bring the administration of justice into disrepute if she was allowed to proceed with her Application. It would be entirely possible that the very same question would be before two different judges, on the same subject matter, with the same parties.
[11] As set out in Cunningham v. Moran, 2011 ONCA 476, all claims arising from the breakdown of a marriage ought to be heard at one time.
[12] While I am sympathetic to Ms. Cote’s predicament, in that she is facing multiple court proceedings by Mr. Cote (including two appeals) when he could have consented to Ms. Cote’s amending her pleadings, the answer is not to start another proceeding. Justice Kiteley has been case managing the other proceeding and made an order that neither party may bring a motion without leave. That should assist in limiting the court attendances.
[13] With respect to her concern about the ten year limitation period, this is something she will need to address in her motion for leave to amend her pleadings in the other action.
Order to go:
The Application is struck, pursuant to rule 1(8.2), as an abuse of process.
Shore, J.
Released: April 2, 2019
COURT FILE NO.: FS-19-007443 DATE: 20190402 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Patrice A.J. Cote Applicant – and – Asha Cote Respondent