COURT FILE NO.: FS-97-FA006049-0000
DATE: 20210608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.M.D
– and –
J.H.H.
Applicant
Respondent
JULIE H. LAYNE, for the Applicant
MARTHA ANNE MCCARTHY, for the Respondent
) HEARD: June 3, 2021
LEIPER, J.
INTRODUCTION
The Issues on the Motion
[1] The Applicant Mother, M.M.D. (“D.”) brought a motion (the “Motion”) to strike five paragraphs from the Respondent Father, J.H.H. (“H.”)’s Answer. D. has claimed retroactive child support and special expenses.
[2] In response to D.’s claim, H. seeks damages, punitive damages of $150,000, and declaratory relief against D. for the torts of alienation of affection and breach of fiduciary duty between the period from 1997-2017.
[3] D. also seeks an order for H. to pay an advance amount of $40,000-$50,000, for D.’s anticipated legal costs in a motion brought by H. which has been amended several times. A prior order for funding made in 2019 has been depleted by the procedural steps taken in the meantime. D.’s net worth is $27,000. H.’s is $97M.
[4] The parties had a child together, S.H., who is now an adult. The issues in dispute reach back to the date of separation when S.H. was 2 years old.
[5] On the first issue, D. argues that H.’s tort claims are not viable in the family law context. She relies on longstanding Supreme Court of Canada jurisprudence. H. responds that this is a novel tort claim, and that more recent cases have expanded tort relief in family law matters.
[6] On the second issue, whether H. should fund D.’s interim disbursements, D. argues that the disproportionate resources between the parties, and the complications that have arisen from H.’s amendments and counter amendments, which drew S.H. into the litigation.
[7] For the reasons provided below, I grant D. the relief sought.
Background to the Litigation
[8] The parties lived together for approximately three years. They separated in March 1997. Their child, S.H., was born […], 1995. After separation and until 2020, S.H. lived with her mother, D.
D. Seeks and Receives Child Support: 1997-2017
[9] In 1997, D. initiated proceedings against H. for custody and child support.
[10] On April 25, 1997, the court ordered payment of “interim interim” child support of $1,200 per month. In June 1997, the matter was transferred to the Ontario Court (General Division). Litigation continued until 2001 but no further orders were made during that period.
[11] H. made child support payments to D. as required by the 1997 order, which was not varied until 2019.
[12] The litigation file was dormant between 2001 and 2017, without a final order.
D. seeks Contribution from H. for S.H.’s Health and Education: 2017-2019
[13] In 2017, D. learned that H. had become wealthy. S.H. was living with D. She was attending university part time. S.H. had struggled with physical and mental health issues during her childhood and teen years. D. asked H. to contribute to S.H.’s expenses for education and her mental health treatment.
[14] H. declined to assist D. with these expenses.
[15] In 2017, D. revived the proceedings seeking contribution to S.H.’s expenses.
[16] H.’s net worth in the first financial statement provided showed that this net worth was approximately $27M. H. contested D.’s claim for expenses.
The 2019 Motion Before Nakonechny, J.
[17] On February 19, 2019, the parties argued a motion before Justice Nakonechny. Justice Nakonechny concluded that S.H. remained entitled to child support.
[18] Justice Nakonechny ordered that H. pay D. $2,012 per month in child support, that H. pay for S.H.’s university expenses and that H. pay D. interim disbursements of $35,000 to be allocated as $25,000 in legal fees and $10,000 to retain an income valuator.
[19] D. was awarded $18,000 in costs on that motion. In her endorsement, Justice Nakonechny identified the anticipated next steps in the litigation would be production of documents and questioning.
H.’s Request for Production of S.H.’s Medical File and for an Affidavit of Documents
[20] H. then asked for disclosure of S.H.’s complete medical records. S.H. asked to review and redact the 600 pages of records prior to their release. S.H.’s affidavit described this as a painstaking and difficult process. The redacted version was released to counsel for H. on (date).
[21] H. also sought an Affidavit of Documents from D. D.’s counsel requested that the Affidavits of Documents be exchanged before Questioning. H.’s counsel did not agree with this proposed schedule and submits that D.’s delay in scheduling Questioning was not reasonable.
H. Serves a Proposed Amended Answer: This Motion is Scheduled and Adjourned
[22] After H. served D. with a proposed Amended Answer, D. did not consent to the amendments.
[23] The Motion was scheduled to proceed on February 18, 2020, to argue the issues of the request to amend, and for D. to argue that the paragraphs in issue in H.’s Answer be struck. D. also sought contribution from H. for the cost of S.H.’s counselling.
[24] At H.’s request, the parties adjourned the Motion. H. agreed at that stage to pay for S.H.’s ongoing counselling costs.
[25] The Motion was rescheduled to April 9, 2020. It was adjourned again due to the pandemic.
[26] On June 1, 2020, the parties appeared to reschedule the Motion. H.’s counsel advised that a new notice of motion would be served.
[27] The Motion was rescheduled to August 18, 2020.
[28] On July 13, 2020, H. served the amended Notice of Motion. He had added a constitutional challenge, new tort claims, and a claim for custody of S.H. H. also sought an order that S.H. be required to undergo a psychological assessment and produce unredacted medical records.
[29] By this point, S.H. had become involved in the litigation and was represented by her own counsel. The parties agreed to conduct a Case Conference before the motion. They agreed to vacate the August motion date.
[30] On September 14, 2020, the parties held a case conference before Justice Faieta. Following the case conference, S.H. brought a motion to require H. to fund her interim disbursements for the upcoming motion on the custody, psychological assessment, and other claims. S.H was successful. H. was ordered to pay $23,000 to S.H. to cover her interim disbursements.
S.H. Moves from D. to H.’s Home: H. Abandons Portions of the Amended Motion
[31] After the disbursements motion, in the fall of 2020, S.H. moved to H.’s residence.
[32] On December 16, 2020, H. abandoned the parts of the Motion related to his request to amend his Answer, and an order for S.H. to undergo a psychiatric assessment and produce unredacted medical records.
[33] The Motion became D.’s motion to strike and for interim disbursements. H. submits that although D. has had the Answer for over two years, the dispute over the paragraphs seeking tort relief is new.
[34] At the argument of the Motion before me, counsel for H. advised that he will again be seeking unredacted copies of S.H.’s medical records. This may predictably reinvolve S.H. in the litigation.
[35] With this background in mind, I turn to the two issues.
Issue #1: Should the paragraphs in H.’s pleadings seeking declarations and tort relief against D. be struck?
[36] The court may strike a pleading that sets out no reasonable claim or defence in law: Family Law Rules, O Reg 114/99, rule 16(12).
[37] The test to strike a pleading is whether it is “plain and obvious” that the claim has no reasonable prospect of success: See Ho v. Lau 2019 ONSC 5573 paras. 15-17; Beaver v. Hill, 2017 ONSC 7245 paras. 75-92.
[38] The pleading should be read generously. Allowances should be made for drafting deficiencies: See Tran v. University of Western Ontario, 2015 ONCA 295.
[39] Reasons such as the length and complexity of the issues, the novelty of the cause of action, or the potential for a strong defence should not prevent a plaintiff from proceeding: See Fein v. Fein, 2001 28141 at para. 15 (SCJ).
H.’s Tort Claims and Declarations
[40] H. seeks three declarations related to his claims for damages for alleged torts committed by D. related to his relationship with their daughter S.H. These are:
i. A Declaration that D.’s alienating behaviour significantly disrupted and altered H.’s relationship with S.H.;
ii. A Declaration that D. intentionally alienated the affection between him and S.H.;
iii. A Declaration that D. breached her fiduciary duty to H. to preserve his relationship with S.H.
[41] H. also seeks monetary damages from D. as follows:
a. An Order that the Applicant pay to the Respondent damages in an amount to be quantified prior to trial for alienation of the parent-child relationship and/or for the alleged breach of D.’s fiduciary duty to preserve the relationship between the Respondent and S.H.;
b. An Order that the Applicant pay to the Respondent punitive and aggravated damages in the amount of $150,000.
Frame v. Smith: Is the Policy Against Tort Litigation in Family Law Matters Still Relevant Today?
[42] D. argues that it is plain and obvious that these claims are not viable. D. relies on the Supreme Court of Canada's decision in Frame v. Smith, 1987 74 (SCC), [1987] 2 SCR 99.
[43] In Frame, the court refused to permit the father to litigate claims against the mother based on the torts of conspiracy, intentional infliction of mental suffering, unlawful interference with his father-child relationship, damages arising from breach of a court order, and breach of fiduciary duty.
[44] The majority in Frame found that there is no tort of alienation of affection and breach of fiduciary duty. It upheld the lower court's decision striking the father’s tort claims: See Frame at p. 110.
[45] The Supreme Court considered what it described as “formidable” arguments against creating the remedy sought by the father in Frame. These include:
a. the comprehensive legislative scheme for dealing with child custody (now parenting time) disputes;
b. The undesirability of provoking suits within the family circle, including the potential for such litigation to disrupt the welfare of a child;
c. The challenges in defining the boundaries of torts in this context.
[46] These policy reasons are grounded in principles that are relevant 34 years later. The undesirability of provoking suits of this kind are grounded in part on the bedrock principle of the best interests of children.
[47] Counsel for H. submits that this part of the policy rationale is less compelling where the child involved is an adult. I disagree. The legislature recognizes this and provides for support for children after they reach the age of majority where they continue to have a relationship of dependence. The transition from teen to adult is an important time in the life of a young person. [48] Justice Doyle wrote about this reality in Evans v. Evans 2017 ONSC 4345 at para. 50:
Family law litigation can be an emotionally charged environment that can cause significant stress on litigants and those involved in the process. This litigation touches on intimate and personal issues that go to the fiber of individuals’ emotional and physical well-being.
[48] I do not accept the submission that young adults are not as susceptible as younger children to the stress and impact of litigation. In some circumstances, they may be more so, because of their ability to understand the significance, their stage of development and their needs for personal autonomy. This aspect of the policy rationale from Frame is as relevant today as it was 34 years ago.
[49] Another aspect of the Frame policy rationale is the difficulty in defining the scope of the alleged torts. Here, H.’s claims seek relief starting from S.H.’s toddler years to young adulthood. H. acknowledges that this will require a “detailed review of historical evidence.” It seems to me that resort to the courts for such purposes is part of what drove the Supreme Court in Frame to limit parents to the existing legislative remedies in child custody and access (parenting time) disputes.
Cases Since Frame: Has the Policy Been Altered?
[50] D. relies on cases decided since Frame which have continued to apply this policy rationale, including Glegg v. Glass 2019 ONSC 6623 paras. 121-133; Ludmer v. Ludmer 2014 ONCA 827 para. 42; Ludmer v. Ludmer 2013 ONSC 784 paras. 315-330; Curie v. Lowe 2004 2004 22947 (ON SC) para. 10; Dryden v. Dryden 2011 ONSC 7060 paras. 33 – 37 ; Louie v. Lastman (No. 2), 2001 28066 (ON SC).
[51] H. submits that other decisions show an evolution in thinking around torts in the family law context. H. submits hat D. has failed to show that H.’s novel claim cannot succeed. H. submits that Fein v. Fein supports the existence of relief for a breach of fiduciary duty in the family law context.
[52] In Fein, Justice Perkins permitted the mother to litigate claims of breach of contract and breach of fiduciary duty against the paternal grandparents. There the grandparents had funded the family for years and then sought to withdraw after the marriage ended. Justice Perkins considered Frame v. Smith in detail. He distinguished the case before him from Frame in part because the mother’s claims in Fein were unconnected to familial status. Their claims were founded on a course of conduct which included express representations. There were not other legal means to repair the damage. As Justice Perkins put it, these claims could “equally as well have been asserted against distant cousins or friends who behaved in the same way” (See Fein at para. 66).
[53] D. argues that Fein is limited to its facts. I agree. Here, H.’s claim is connected to his status as a parent and seeks relief against the other parent. Unlike the case in Fein, H. had means throughout the time over which he seeks relief to pursue remedies under the legislation arising from H.’s status as a parent. I find that Fein does not apply to the case at bar.
[54] H. also relies on Leitch v. Novac, 2020 ONCA 257 in support of his tort claims. There the matter involved parties over whom no relief was available under the statutory scheme. The Court of Appeal found that the facts in Leitch involved alleged “invisible litigants” who may conspire to conceal assets to benefit one of the parties. Barring conspiracy actions against such actors would mean that for them, they could act with impunity: See Leitch at paragraphs 44-47.
[55] I agree with D. that Leitch is distinguishable on its facts and the application of the policy. It co-exists with the policy rationale in Frame v. Smith.
[56] I find that Frame v. Smith continues to be good law in Ontario. It continues to be applied. It applies here to H.’s claims. Exceptional cases involving parties outside the parent-child relationship may support tort claims in the family law context, but these are rare and limited to cases where the gaps in the legislative scheme could create injustice.
[57] I order that the tort claims shall be struck from H.’s Answer. They do not disclose a viable cause of action.
Is the Analysis Different if the Tort Claims are Removed and the Request for Declaratory Relief Remains?
[58] As an alternative, H. submits that even if the tort claims are struck, the ability to seek declaratory relief should remain. He submits that it is within the Superior Court’s inherent jurisdiction to order declaratory relief, pursuant to s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43 s. 135.
[59] Parents have sought declaratory relief in custody and access disputes. In Ignatov v. Di Lauro, the father brought a motion to have custody and access reversed, declaratory relief finding that the mother was in breach of a court order, and fines associated with the breaches. The court granted the relief sought and found that the mother breached court orders.
[60] In Ignatov, the declaratory relief was connected to the statutory scheme and was subsidiary to the legislative claims for relief. It did not seek a stand-alone declaration using the full administration of justice apparatus for a twenty-year examination of inter-familial relationships.
[61] Here H. seeks stand-alone declaratory relief. I distinguish his circumstances from those of the father in Ignatov.
[62] I find that the policy rationale in Frame v. Smith applies equally to the claims for declaratory relief in H.’s Answer. I order that these paragraphs be struck as disclosing no viable cause of action.
Issue #2 Should an Order be Made for Disbursement funding from H. to D.?
[63] The Family Law Rules give the court discretion to order a party to pay an amount of money to the other party to cover part or all the expenses of the litigation: See Family Law Rules, O. Reg. 114/99, rule 24(18).
[64] The discretion of the court should be informed by fairness and balance as between parties to avoid distorted or unfair litigation outcomes. Each party should be capable of presenting their case and assisting the court in achieving fair outcomes: See Stuart v. Stuart [2011 0.J. No. 5172 (S.C.J.) at para. 7-8; Agresti v. Hatcher [2004] O.J. No. 910 (S.C.J.) at para. 11, 17; Bordin v. Iacobucci, 2016 ONSC 1333 at para 55.
[65] Stuart (paras 8, 11-13) describes the test for the party seeking disbursements as:
a. That the disbursements are necessary and reasonable given the needs of the case and the funds available;
b. That the party requesting the disbursement is incapable of funding the requested amounts; and,
c. That the claim or claims being advanced is meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.
[66] D. seeks $40,000 ($50,000 if the tort claims continue) in disbursements. D. has provided updated financial information which establishes that D. does not have a source of funding to continue the litigation. D. is unemployed. Her net worth is modest.
[67] H. was found in other matrimonial litigation to be earning $1M annually in 2019. H.’s most recent financial statement puts his net worth at $97M.
[68] D.’s Application is predicated on the fact that S.H. resided primarily with D. since the date of separation. Justice Nakonechny ordering an increase in child support found that D.’s case has merit. H.’s positions have shifted over the past two years, and added some complexity including the need for S.H. to have representation and be involved over the issue of the medical records, which have recently been returned to the issue list by H.
[69] The evidence tendered by D. is that D. has depleted all the funds advanced to her to pay for the cost of the motion before Justice Nakonechny and for all the legal fees associated with the steps she has taken to date. D. submits that H.’s position has been a “ a moving target.” This is a reasonable characterization. The shifting claims which H. brought involving S.H., her medical records, custody, and a psychological assessment introduced a layer of complexity into the litigation that can be best understood with reference to S.H.’s affidavit about those matters.
[70] H. argues that there is insufficient evidence of the basis for the amounts sought for disbursements. H. submits that the numbers have been pulled out of the air. D. submits that an estimate of future legal fees and disbursements is sufficient. See: Romanelli v. Romanelli 2017 ONSC 1312 at paras. 34 & 36.
[71] D.’s affidavit attaches details as to how she funds her living expenses. She is living frugally and relies in part on contributions from others for her housing.
[72] H. has been ordered to pay costs and disbursements at earlier points in this litigation. Justice Boucher. ordered costs of $23,000 in favour of S.H. for the motion concerning her medical records.
[73] Justice Nakonechny ordered $35,000 in advance disbursements to be paid to D. as well as $18,000 in costs for the 2019 long motion, which required H. to pay increased child support. These amounts provide additional context to the order of magnitude for reasonable disbursements in this litigation.
[74] In terms of next steps, the parties have not yet exchanged affidavits of documents or scheduled questioning. The issue of the medical records has been reintroduced. Similar levels of complexity can be anticipated. D.’s claim for $40,000 will not permit D. to “litigate with impunity.” I find that the procedural history does not reveal any significant delay or any game playing by D. to date. D.’s positions have been reasonable, including the request to exchange documents before moving to questioning. This will avoid duplication of effort and cost, and potentially reduce the time required for questioning if facts are established by the records.
[75] I am satisfied that D. has established that she needs the funds to continue the litigation, that there is prima facie merit in D.’s claim and that there is risk of an inequitable playing field if the order is not made.
[76] I order that H. shall advance further interim legal fees of $40,000 to the Applicant.
Conclusion
[77] I grant the relief sought by D and order that:
a. The Respondent's claims in paragraphs 1 through 5 at page 6 of the Respondent’s Answer shall be struck;
b. The Respondent shall advance further interim legal fees of $40,000 to the Applicant.
Costs
[78] If the parties are unable to agree as to costs, they may make brief written submissions (maximum three pages) as to costs on or before June 30, 2021, on a timetable as agreed between counsel, unless they require further direction from me in writing.
Leiper J.
Released: June 8, 2021
COURT FILE NO.: FS-97-FA006049-0000
DATE: 20210608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.M.D
Applicant
– and –
J.H.H.
Respondent
REASONS FOR JUDGMENT
Leiper J.
Released: June 8, 2021