COURT FILE NO.: FS-20-15718
DATE: 20210226
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephanie Morgado Eira, Applicant
AND:
Kiran Kulkami, Respondent
BEFORE: Horkins J.
COUNSEL: Christina Doris and Carina Chan, for the Applicant
Laura Chiu, for the Respondent
HEARD: February 26, 2021
Motion ENDORSEMENT
[1] The parties met in 2017 through an online dating site. They began living together in April 2018 but never married. They have one child born May 10, 2018. They separated in July 2019, reconciled in September 2019 and separated again on January 4, 2020.
[2] The Applicant seeks child and spousal support in this application.
[3] The Respondent father brings a motion seeking to strike a sentence in the Applicant mother’s Reply dated April 14, 2020 at paragraph 41.
[4] Family Law Rule 1(8.2) states 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." As confirmed in Frick v Frick 2016 ONCA 799, a document includes a pleading.
[5] The Respondent father argues that a single sentence in paragraph 41 of the Applicant’s Reply is “inflammatory” and for this reason should be struck.
[6] Paragraph 41 of the Applicant’s Reply reads as follows, with the sentence in question in italics: “
To date, Kiran has not paid any child or spousal support to Stephanie, aside from a one-time payment of $2,000.00. Even after numerous requests through counsel for Kiran to start paying a monthly amount on a temporary, without prejudice basis, Kiran has refused to make any other payments, despite having the financial means to do so. When the COVID-19 outbreak first began and Stephanie asked that Kiran provide her with funds to take a taxi or ride share for access exchanges so Amell would not have to take public transit and possibly be exposed to the virus, Kiran refused.
[7] Inflammatory is defined in Blacks Law Dictionary as “tending to cause strong feelings of anger, indignation, or other type of upset; tending to stir the passions”.
[8] Courts have found statements to be inflammatory when they are irrelevant to an issue in the case or consist of personal attacks.
[9] In Frick, statements in the wife’s Application about the Respondent husband’s extra-marital conduct were struck under Rule 1(8.2). The court explained that the statements were inflammatory because they “provide a springboard to question the husband about his extra-marital conduct, not about his net family property”. Further, “extending questioning of the husband's conduct …that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.”
[10] In Norris v. Norris, 2016 ONSC 7077 at paras. 66-68, paragraphs in a factum included “commentary questioning the competence and professionalism of opposing counsel”. The remarks were found to be inflammatory and struck from the factum.
[11] In Cheng v. Yu, 2017 ONCJ 563 at paras. 107-111, statements in a non-party’s affidavit were found to be inflammatory because the language was unnecessary and unhelpful to the party that filed the affidavit and “only further intensifies the conflict in an already high conflict case.” The court refused to strike the statements. Instead no weight was given to the statements that the court characterized as hyperbole and personal attacks.
[12] As explained below, the Respondent has not shown that the sentence in question is inflammatory. Even if it was inflammatory, and it is not, the decision to strike a pleading is not automatic. The law is clear that an order to strike pleadings is a drastic remedy that should only be applied in exceptional circumstances, where no other remedy would suffice (Callwood v. Callwood v. Purdy, 2020 ONSC 3657).
[13] The Respondent has other remedies. He can question the Applicant about the sentence, he can serve a request to admit and if the application proceeds to trial he can cross-examine the Applicant.
[14] The Respondent argues that the sentence is contradicted by correspondence between counsel and is a clear misrepresentation of facts in this case. He says that this correspondence shows that he rejected the Applicant’s proposal for the child to be transported in a taxi or ride share because of hygiene reasons and as a preventative measure against COVID-19, not because of costs associated with these modes of transportation.
[15] The Respondent characterizes this sentence as vexatious. He is concerned that it could adversely affect his reputation in his community and adversely affect a charitable organization where he is a founding member.
[16] The correspondence that the Respondent refers to does not support his position.
[17] As of April 14, 2020, the date that the Applicant served and filed her Reply, the Respondent had only made a single payment of $2,000 in support. The Respondent refused to pay periodic child or spousal support to the Applicant in any amount until mid-September 2020
[18] The Respondent lives in Mississauga and the Applicant lives in Toronto with her parents. She does not drive. Before COVID, the applicant primarily relied on the TTC. She would meet the Respondent at the Kipling station and this is where they would transfer the child to each other’s care. On Sundays, if her parents and their car were available, they would drive her to the Kipling station.
[19] With the Covid pandemic, the parties became concerned about travel on the TTC. This led to the communications between counsel seeking to find an alternative solution to TTC travel.
[20] The Applicant’s counsel proposed that all transfers occur at their respective homes. Because the Applicant did not drive and did not always have access to a vehicle, she asked the Respondent to either facilitate all drop-offs and pickups from her Toronto home or reimburse her for the cost of a taxi, Uber or Lyft rides.
[21] The back and forth communications between counsel reveal the following. The Respondent did not want the applicant and child to use the TTC during Covid. The Applicant was also concerned about using the TTC during the pandemic. The Respondent also expressed his concern with use of taxis Uber or Lyft rides because of Covid. It was his proposal that the Applicant’s family assist with driving the Applicant and child on Sundays. The Applicant made it very clear that she could not always count on her family being able to drive her and the child to meet the father on Sundays. Therefore, on Sundays when the Applicant’s family could not drive her there were two choices: the Respondent would pick up and drop off the child, or he would pay the Applicant to use a taxi, uber or lyft. During COVID the Applicant agreed that a private car was preferred.
[22] The Sunday problem was not resolved because the Respondent did not commit to pick up and drop off on Sundays when the Applicant had no car. This left the “taxi uber /lyft” option and the Respondent would not agree to this.
[23] Based on the correspondence the sentence in the Reply was accurate. The Applicant did ask the Respondent to provide her with funds to take a taxi or ride share for access exchanges so the child would not have to take public transit and possibly be exposed to the virus, and the Respondent refused.
[24] I observe that the Sunday problem could have been avoided if the Respondent had simply and clearly agreed in advance to drive the child back and forth on Sundays (during Covid) if the Applicant’s family car was not available.
[25] While the single sentence may not set out all the details concerning the “Sunday” problem, it is not, as alleged, a “clear misrepresentation” of what was happening. The sentence in question is relevant to the Applicant’s claim for support. There is absolutely no basis for alleging that this sentence is “inflammatory”. Therefore rule 1(8.2) is not triggered. The motion is dismissed.
[26] The Applicant seeks full recovery costs of $8,458.62 inclusive of fees and tax. The bill of costs confirms fees of $7,485.50 (slightly more than the Respondent’s bill of costs). The time spent and rates are reasonable. The Respondent served two affidavits and the applicant filed one. Factums were exchanged.
[27] The Applicant was successful on this motion and is entitled to costs. While this motion was ill-founded, I am not satisfied that bad faith or unreasonable conduct justifies full recovery. No offers to settle were made.
[28] I fix the Applicant’s costs at $6500 all-inclusive payable by the Respondent in 30 days.
C. Horkins J.
Date: February 26, 2021