Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.S.
AND:
S.B.
BEFORE: Papageorgiou J.
COUNSEL: Gary Joseph, for the Applicant
Rui Alves, for the Respondent
HEARD: October 28, 2021
Endorsement
The Applicant M.S. (“Applicant”) brings a motion to strike paragraphs 54, 57, 58, 97-102 and 107 of the Respondent S.B’s. (“Respondent”) Answer.
There was also a motion for interim support but it has been adjourned to January 20, 2022 for one hour at 2:00 p.m.
The Applicant’s position is that the cited paragraphs of the Answer contain inflammatory remarks, engage in argument, and/or misquote surreptitiously obtained evidence, taken out of context to impugn the Applicant’s character.
Rule 1(8.1) and 1(8.2) provide as follows:
(8.1) FAILURE TO FOLLOW RULES—If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g)
(8.2) DOCUMENT THAT MAY DELAY OR IS INFLAMMATORY—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’s process.
- In Frick v. Frick, 2016 ONCA 799, the Court described the Family Law Rules as follows:
11The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.
12In the rare instance when a matter is not adequately covered by the family rules, the court may decide the issue with reference to the civil rules.
In that case, the motions judge had analogized Rule 2.1.01 to Rule 1(8.2) and held held that it was inappropriate to parachute the Rules of Civil Procedure into the analysis of whether or not an action is “frivolous or vexatious or otherwise an abuse of the process of the court” (Rule 2.1.01). The Court found that Rule 1(8.2) adequately sets out when a portion of a document may be struck in a Family Law proceeding: namely if it may delay or make it difficult to have a fair trial or [it] is inflammatory, a waste of time, a nuisance or an abuse of process of the court.
However, in Beaver v. Hill, 2017 ONSC 7245 at para 78 the Court determined that Rule 25 of the Rules of Civil Procedure should be imported as the Family Law Rules do not specifically address the requirements of a Family Law pleading. The issue in that case was whether the pleading should be struck because it failed to set out material facts. The motions judge struck the claim. On appeal the Court of Appeal upheld the striking of the claim and indicated it agreed with his analysis. Therefore, the Court of Appeal implicitly agreed to the importing of the requirements of Rule 25.
Much of the moving parties’ argument is that the Respondent has pleaded evidence which is not permitted under the Rules of Civil Procedure.
Paragraph 54
- Paragraph 54 of the Answer states:
“…This happened shortly after the murder of Dr. Elana Fric, in November 2016, by her husband Dr. Mohammed Shamji, also a neurosurgeon like the Applicant, with whom the Applicant had trained.”
Dr. Shamji, when served with divorce papers brutally beat and strangled his wife to death prior to packing her body in a suitcase and dumping it into the Humber River.
I agree this sentence is inflammatory and a waste of time and should be struck.
Paragraph 57
Paragraph 57 states “Since separation, the Applicant has expressed to his medical student girlfriend his desire to kill the Respondent.”
The Applicant argues that this is inflammatory. However, the Answer is based upon serious allegations of familial abuse and in such circumstances, pleadings will be extreme. The issues in this case involve custody of the children.
The Respondent has provided a report from Annette Katchaluba, a registered social worker and the Director of Child-Centred Divorce Service at By Peaceful Waters since 2007. She has had extensive experience dealing with family violence. She provided an opinion that failure to adequately screen and account for IPV in child custody disputes may result in the detrimental effects of exposure to IPV on children’s cognitive, emotional and behavioural difficulties.
I see no problem with this pleading being inflammatory in the context of a pleading about family violence.
Paragraph 58
- Paragraph 58 of the Answer contains a lengthy text the Applicant sent the Respondent while the parties discussed their pending divorce:
“…I’m the last thing you need—You are not mine—Those kids aren’t mine—I’m the pay check—No—you want it like this—And you drive me to it..I will get a lawyer Tuesday—I need out—I am Do[n]e—You can have the kids too…I just want to be free—I will give you everything—Just leave me alone—Never call……”
- The text message at paragraph 58 is struck out as being evidence but the remainder of the paragraph is appropriate.
Paragraphs 97 to 98
Paragraph 97 states: “Also of concern with respect to the Applicant’s parenting of the parties’ young daughters is the Applicant’s pattern of viewing women as sexual objects that he can control.”
Paragraph 98 references the Applicant’s pattern of body shaming his daughter and calling her “fat”.
The applicant argues that these paragraphs are inflammatory. I disagree. In the context of a family law dispute where custody and access are at issue, these are entirely appropriate and relevant pleadings.
Paragraphs 99 to 101
Paragraphs 99, 100 and 101 refer to extra-marital sexual relationships and other conduct at work where he objectifies women.
I agree that these paragraphs should be struck as they are not material to the issues in this case and are inflammatory although the pleading that he objectifies women is relevant and material and the Respondent is given leave to amend.
Paragraph 102 provides as follows:
The Applicant has already seen fit to objectify and sexualize both daughters via offensive text communications between himself and the University of Toronto medical student clerking at his hospital (the “medical student”), with whom he engaged in his second extra-marital affair (that the Respondent knows of), suggesting that the medical student could care for the Children when he is unavailable due to his hosptial obligations and that she could show the girls her “vibrator” and “explain it’s function—Suck blow—Etc”, They went on to discuss that the medical student could teach the girls about their “clits” and that the girls needed the medical student to “coach” them because otherwise, in the Respondent’s care “they’ll be one of those girls that never cums”.
- I agree that paragraph 102 contains information that is a waste of time as it contains information about his extra marital affair. However, the alleged fact that the Applicant has been discussing his children in a sexual manner with his students is relevant. Paragraph 102 is struck out with leave to amend to remove irrelevant information about his extra marital affairs.
Paragraph 107
- Paragraph 107 states:
“As set out under the Family Violence section above, the Applicant took the position, on May 16, 2020, that he wanted nothing further to do with his children.”
- This pleading is entirely appropriate given the issue is custody and access and the willingness of a person to care for a child is a relevant consideration as to the best interests of the children.
Unauthorized access to communications
The Respondent also argues that the Applicant has used unauthorized communications to obtain the information contained in paragraphs 57, 99, 100 and 102.
The tort of intrusion upon seclusion has three elements:
The defendant’s conduct must be intentional, which includes recklessness;
The defendant must have invaded without lawful justification, the plaintiff’s private affairs or concerns;
A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
Jones v. Tsige, 2012 ONCA 32 at para 71.
As to the Applicant’s argument that this is electronic information was surreptitiously obtained without the Applicant’s knowledge or consent, the case law directs that that relevant evidence, even improperly obtained, is admissible: Grech v. Scherrer, 2018 ONSC 7206 at paras 30 and 32-34; Garrett v. Oldfield, 2014 ONSC 508 at paras 29-34.
In Gonzalez v. Gonzales, 2016 BCCA 761 a computer was purchased for the family, the complainant used it only casually when in the matrimonial home and documents in question were readily accessible because the home computer did not have a password. The Court of Appeal held that “any expectation of privacy” which the complainant would have would be slight.”
Similarly in Greenhalgh v. Verwey, 2018 ONSC 3535, the Court held that where a party takes no steps to resrict access to a computer and does not seek the computer’s return at any point, that party has a lessened expectation of privacy.
The Respondent states that she obtained them from the Family Ipad which the Applicant had synced all his devices to. It is uncontradicted that she showed the Applicant the IPAD in January 2018 and told him that all his text messages had been downloaded onto the IPAD. She says he did not remove the family IPAD or disable the syncing of his communications to the family IPAD. Pursuant to the above authorities, the Applicant would have a very low expectation of privacy in documents or communications he knew were on the family IPAD which the Respondent could see. As well, in such circumstances, a reasonable person would not view her viewing of materials on the IPAD as highly offensive, causing distress and humiliation.
The burden to prove unauthorized use is on the Applicant. Accordingly, I am dismissing his motion in this regard.
Anonymization
- The Applicant seeks that this proceeding be anonymized because of the children and salacious content of this matter. I agree that it is appropriate to anonymize this proceeding to protect the anonymity of the children: G.M. v. R.M., 2015 ONSC 4026, para 51; D (G.T.G.) v. D.(M.), 2016 CarswellOnt 10362.
Reply
The Applicant is given leave to late file his reply.
If the parties cannot agree on costs they may make submissions within 5 days but I am inclined to make a no costs order given the varied success which both parties have had on this motion.
Papageorgiou J.
Date: November 29, 2021
