COURT FILE NO.: FC-13-1861

DATE: December 9, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dianne Pearl Douglas, Applicant

Cecil Lyon, Counsel for the Applicant

• and -

René Albert Faucher, Respondent

Marc Coderre, Counsel for the Respondent

HEARD: October 21, 2021

EVIDENCE RULING

JAMES J.

Facts

1This is a ruling regarding the use of affidavits in a Motion to Change proceeding and in particular, the right of reply by affidavit to a responding party’s Form 15B Response to Motion to Change.

2The Motion to Change in issue is this case was brought by the respondent, René Faucher on February 11, 2019.

3Ms. Douglas’s Response to Motion to Change was sworn on March 26, 2019.

4The original hearing date was anticipated to be April 2020, but this was cancelled due to the pandemic.

5A Voice of the Children Report was commissioned later in 2020.

6A new hearing date was obtained for October 21, 2021 and Mr. Faucher served a Notice of Motion dated May 7, 2021 reiterating the relief sought in the motion and confirming the date of the hearing.

7Mr. Faucher served an affidavit dated June 11, 2021 and an additional 8-page affidavit in July 2021.

8No responding material was delivered by Ms. Douglas until October 15, 2021 when an extensive (340 pages) affidavit was delivered.

9This prompted Mr. Faucher to request an adjournment for additional time to review the material and prepare a reply if necessary. While counsel for Ms. Douglas was prepared to consent to an adjournment, he challenged the entitlement of Mr. Faucher to deliver a reply.

Position of Ms. Douglas

10Rule 15 of the Family Law Rules governs the procedure on Motions to Change. Nowhere does Rule 15 authorize a reply by the moving party. There is no approved form for replies nor does the rule specifically authorize the use of an affidavit for the purpose of replying to the position of the respondent.

11Subrules 15(22) and 15(23) permit the use of affidavits in place of or to supplement a Form 15A Change Information Form and Form 15B Response to Motion to Change.

12Ms. Douglas acknowledges that Rule 2 grants the Court a discretionary power to give directions to promote a fair, just, and efficient hearing and rule 15(26) permits the Court to provide directions when the materials that have been filed are deemed to be inadequate. However, in this case Ms. Douglas says that a reply affidavit is not required to deal with the case properly or justly. She says it would be disproportionate to permit a reply when Mr. Faucher has already filed multiple affidavits.

13In the alternative, Ms. Douglas says that if the Court finds it appropriate to allow Mr. Faucher an opportunity to reply, the document should be limited to 3 pages and be limited to addressing only any “new” claims.

Discussion

14While it is true that the Rules do not explicitly authorize or refer to a right of reply in favour of the moving party in Motions to Change, in practice it is not an uncommon occurrence.

15Counsel for Ms. Douglas did not provide an example of a situation where a reply was filed, and the opposing party successfully applied to have it struck out on the grounds they are not permitted in Motions to Change.

16In my view there are adequate and effective mechanisms available to the Court to deal with excessive or inappropriate use of affidavits.

17In this situation, the long delay of almost two years due to the pandemic makes the use of an updating affidavit appropriate, if not a necessity. It would be unjust to expect a litigant to be restricted to presenting two-year old evidence without some ability to provide an update respecting more recent events.

18Also where, as in this case, the responding party delayed delivering an affidavit until almost the last minute, the unfairness referred to in the preceding paragraph would be compounded if the responding party was the only party allowed to present evidence as to what has ensued in the months since the moving party presented his evidence.

19Ms. Douglas has not provided an explanation for waiting from July 2021 when the moving party served his last affidavit until mid-October. She is not obliged to provide any such explanation, but it seems to me that in fairness, the moving party should have some mechanism to reply.

20In terms of trial procedure, the right of reply has long been associated with the moving party’s onus of proof. Generally speaking, the party who has the onus of proof also has the right of reply, both at the pleadings stage and in argument at the hearing

21This is not to say that the right of reply is unlimited, clearly it is not. Proper replies are restricted to addressing new matters raised for the first time by the respondent.

22Similarly, that should be the case here although I am not inclined to place a page limit as suggested by Ms. Douglas.

Disposition

23Mr. Faucher is permitted to deliver a reply affidavit within 6 days, limited to addressing new matters or evidence raised for the first time by the respondent.