Court File and Parties
COURT FILE NO.: FS-21-23181
DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEONIE WILKIE
Applicant
– and –
ROBERT HUGHES
Respondent
Cheryl S. Williams, for the Applicant
Shannon Beddoe, for the Respondent
HEARD: In writing
Endorsement
M.D. Faieta J.
[1] The Applicant wife brings this Form 14B motion for an order: (a) sealing this motion and supporting affidavit from the court record; (b) striking paragraphs 12 through 20 of the Respondent’s Answer; and (3) permitting the Applicant to serve and file her Reply within 14 days.
[2] The parties were married in 1995 and separated in July 2018 There are no children of the marriage. Aside from the request for a divorce, the issues between the parties are solely financial. The parties have been unable to settle their financial claims.
[3] In May 2021, the Applicant commenced this Application. She seeks spousal support, maintenance of life insurance and health insurance benefits, equalization of net family property, sale of a jointly held condominium and occupation rent.
[4] The Respondent deliver his Answer in June 2021. In addition to specifically responding to each of the Applicant’s claims, the Respondent advances a claim for a divorce, an order imputing income to the Applicant, an order that the Applicant repay any overpaid spousal support paid on a without prejudice basis since the date of separation, an order for equalization of net family property subject to adjustments advanced to the Applicant post-separation and an order for questioning.
[5] In his Answer, at paragraphs 12-20, the Applicant alleges that the Respondent makes certain irrelevant allegations regarding the circumstances and events related to their relationship that occurred many years prior to their marriage.
[6] The Respondent opposes this motion on several grounds.
Is this motion a proper Form 14B motion?
[7] Rule 14(10) provides that:
If a motion is limited to procedural, uncomplicated or unopposed matters, the party making the motion may use a motion form (Form 14B) instead of a notice of motion and affidavit.
[8] The Respondent submits that there is nothing simple or straightforward about this motion. He submits that it should be the subject of a long motion.
[9] The use of Rule 14(10) is informed the primary objective of the Rules which is to deal with cases justly as mandated by Rules 2(2) - 2(5).
[10] A long motion is unnecessary. Having regard to Rule 2(3), such approach is not proportionate to the complexity of the motion, does it save expense and time, and would result in court resources inappropriately being taken away from other cases. The focus of this 14B motion was narrow and permitted each party to make its arguments in a summary and timely fashion on procedural issues. The Form 14B process, in this case, permits a court to identity issues at an early stage that do not need full investigation and trial as contemplated by Rule 2(5).
[11] I find that the Applicant’s motion is properly brought under Rule 14(10).
Are impugned paragraphs inflammatory?
[12] A family law pleading may be struck pursuant to Rule 1(8.2) of the Family Law Rules: Frick v. Frick, 2016 ONCA 799, paras. 18. 21.
[13] Rule 1(8.2) states that:
The court may strike out all or part of a 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 process.
[14] The Applicant submits that the paragraphs 12-20 contain inflammatory details about the parties’ early relationship that are included to smear and threaten the Applicant as punishment for commencing this Application. She submits that these allegations are wholly irrelevant to the issues described in the pleadings.
[15] I agree with the views expressed by Timothy Ray J.in Hutton v. Hutton, 2015 ONSC 6683, paras. 7-9
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.
[16] There is nothing in the Respondent’s response to this motion which explains the relevance of the allegations in the impugned paragraphs of the Answer to the claims advanced by the parties.
[17] The allegations made by the Respondent in paragraphs 12-20 stand alone in that they have no connection in his Answer to the financial claims that he is defending or the financial claims that he is advancing. It is a waste of this court’s resources and the Applicant’s resources to address irrelevant allegations in this proceeding.
[18] It appears that the purpose of the impugned allegations is to embarrass the Applicant and cast her in a bad light.
[19] The Respondent, whose Line 150 income in 2019 as a senior executive with a financial institution is alleged to have been more than $693,000.00, is clearly upset that the Applicant, a former high school teacher, has commenced this Application and it appears that he is attempting to use this court’s process to embarrass the Applicant for doing so. His Answer, at paragraph 48, states:
It was Robert’s hope to resolve the parties’ family law matters without resort to litigation. It was his understanding that the parties were mutually committed to resolving their matrimonial issues in a mutually committed to resolving their matrimonial issues in a mutually agreeable manner. However, it is clear from Leonie’s behaviour that she is acting in bad faith.
[20] Given that more than three years have passed since the parties’ separation without resolution of their financial issues, it is difficult to understand why the Respondent believes that the Applicant has acted in bad faith in commencing this proceeding.
[21] I find that paragraphs 12-20 of the Answer are both “inflammatory” and a “waste of time”. I order that those paragraphs be struck.
[22] The Applicant is granted leave to serve and file her Reply within 14 days.
[23] Both parties will be given the opportunity to try to settle this case as I direct that a settlement conference be held within 75 days.
Should this motion and accompanying affidavits be sealed?
[24] The Applicant submits that the motion and accompanying affidavits be sealed. To obtain this relief, the Applicant must demonstrate that there are exceptional circumstances which justify a limitation of the open court principle: See Foulidis v. Foulidis, 2016 ONSC 6732.
[25] However, the Applicant cites no rules, law or rationale in support of her position. This aspect of the motion is dismissed without prejudice to the Applicant bringing a further motion for this relief.
CONCLUSIONS
[26] I make the following orders:
(1) Paragraphs 12-20 of the Answer are struck. The Applicant is granted leave to serve and file her Reply within 14 days.
(2) The Applicant’s motion to seal the motion and related affidavits in the court file is dismissed on a without prejudice basis.
(3) There shall be no costs of this motion given the divided success.
(4) The parties shall attend a Settlement Conference within the next 75 days on a date to be scheduled by the Family Trial Office.
Mr. Justice M.D. Faieta
Released: July 13, 2021
COURT FILE NO.: FS-21-23181
DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEONIE YVONNE WILKIE
Applicant
– and –
ROBERT G. HUGHES
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: July 13, 2021