Konschuh v. Marrone, 2025 ONSC 1037
Court File No.: FC-1145-23
Date: 2025-02-14
Superior Court of Justice – Ontario
Re: Eric Douglas Konschuh, Applicant
And
Serena Elizabeth Marrone, Respondent
Before: Alex Pazaratz
Counsel:
Applicant: Self-Represented
Respondent: Deborah Barfknecht
Heard: 2025-02-14
Endorsement
Introduction
“68 Minutes”. Not the similarly named TV newsmagazine. But the motion.
Actually the self-represented Applicant father has brought two motions, both relating to an ongoing parenting-time dispute relating to three children: seven-year-old twins and a six year old.
Office of the Children’s Lawyer
One of the motions is on consent: The Office of the Children’s Lawyer is requested to consider involvement in this matter. The parties are to submit their OCL intake forms within 14 days. There are no costs on this issue.
As an aside, I mentioned to the father that this matter has a Trial Scheduling Conference scheduled for next week – February 18, 2025 at 12:00 p.m. I wanted him to be aware that if we are now requesting the involvement of the OCL, it will likely be some time before the OCL gives a response, and depending on what assistance the OCL might provide (a section 112 investigation, for example), it might take quite a number of months before the OCL would be able to provide a report. The scheduling of the trial will likely have to be delayed until we are able to ascertain what additional evidence and information (if any) will be available from the OCL and when. The father confirmed that he understood that by requesting the involvement of the OCL at this late stage, it may delay the trial.
Request to Admit and Timeliness
The father’s second motion is in relation to a Request to Admit. The facts are very straightforward.
a. On January 4, 2025 the father served the mother’s lawyer with a Request to Admit.
b. Pursuant to Rule 22, the deadline for the mother filing a Response to the Request to Admit was January 24, 2025. More precisely January 24, at 4:00 p.m.
c. The mother’s lawyer served the father with a Response to Request to Admit by email on January 24, 2025, but at 5:08 p.m. The Response was emailed 68 minutes past the deadline.
d. The father has brought a motion to “strike” the Response to Request to Admit and prevent the mother from filing or relying on the document.
Discretion to Allow Late Filing
A court may exercise its discretion to allow the late filing of a Response to Request to Admit. The reason for the late response will be a critical factor in the court's determination.
a. In Behzadi v. Goodarzy, 2016 ONSC 4140 the court exercised its discretion when it was that party's “counsel's admitted mistake in not serving a timely response”.
b. In Booth v. Wakil-Booth, 2010 ONSC 6320 “[t]he Wife's counsel advised that although he had instructions to prepare a response, through inadvertence, he failed to do so.” The court accepted that explanation and provided a seven-day extension within which to file the response.
c. The request for an extension of time to file responses to Requests to Admit must be based on acceptable reasons. Norris v. Norris, 2016 ONSC 7077.
d. But if counsel is to blame for a delay in responding to a Request to Admit, the first day of trial is too late to allow the admission to be withdrawn. Biant v. Sagoo, 2001 CarswellOnt 1517.
Parties’ Positions
In this case, the mother’s lawyer advises that late service of the Response by 68 minutes was simply a matter of error or oversight.
The father doesn’t accept this explanation. He feels it was a deliberate attempt to exercise power or control. He points to previous situations in which he feels the mother has deliberately created a nuisance or inconvenience for him.
I am not going to comment on any of the father’s allegations about previous incidents or situations. I am only dealing with the father’s specific motion today.
Analysis and Application of the Rules
While the father is to be commended for utilizing a Request to Admit which is an important mechanism intended to reduce factual disputes at trial, I cannot help but conclude that his extremely technical approach to the 20-day deadline set out in Rule 22(4) is unhelpful and a needless distraction from very important parenting issues.
The father is a well-informed and somewhat frequent litigant. I would remind him about Rule 2 of the Family Law Rules, O. Reg. 114/99.
Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).
Duty to manage cases
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with all or any part of the case without requiring parties, witnesses or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order under clause 1 (7.2) (i) or (i.1). O. Reg. 114/99, r. 2 (5); O. Reg. 152/21, s. 2.
The father admits that there is no real prejudice to him by having received the Response to Request to Admit 68 minutes late. This breach of timelines has not impacted his ability to marshal evidence or prepare for a trial which is likely many months away (likely even more months away as a result of his late request for an OCL). By his own admission, he is simply asking for strict compliance with the Rules for purely technical reasons, rather than anything to do with fairness or the best interests of his children.
The father is correct that Rules should be followed. But discretion and common sense also have a place in family court.
This is a high conflict parenting dispute. Trivial technical breaches should not be allowed to interfere with the court’s need to receive all relevant information concerning the best interests of children.
While the father may complain that the mother has historically engaged in nuisance behaviour, bringing this motion because service was 68 minutes late may also fall into the nuisance category.
Disposition
To avoid any further discussion on this topic, the mother is granted leave to file the Response to Request to Admit which was served 68 minutes late.
The father’s motion is dismissed.
Justice Alex Pazaratz
Date: February 14, 2025