Ontario Superior Court of Justice

Court File No.: FS-20-077
Date: 2025/02/24

BETWEEN:
David Robert Schmidt, Applicant
– and –
Jennifer Lea Schmidt-Demellweek, Respondent

Appearances:
Tim Gronfors, Counsel for the Applicant
Self-represented, for the Respondent

Heard: February 14, 2025

Reasons for Decision
M.G. Ellies

Overview

[1] I have before me three motions under r. 14(10) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”). One is a motion by the applicant to note the respondent in default of responding to the applicant’s motion to change dated October 17, 2024. The other two have been brought by the respondent in contravention of the FLRs.

[2] These reasons explain why I have granted the respondent a further brief period of time to comply with the FLRs and made an order striking most of the materials she has filed in contravention of them.

Background

[3] In July 2021, I granted a summary judgment motion brought by the applicant within the context of divorce proceedings between the parties. For reasons released on July 20, 2021, I made an order that the parties would have joint-decision making responsibility for their two children, now ages 13 and 7, and that they would have parenting time on a week-about basis, among things: Schmidt v. Schmidt, 2021 ONSC 5044.

[4] On August 29, 2022, my July 20, 2021, order was varied on consent, but not with respect to the parenting orders relating to the children.

[5] On October 17, 2024, the applicant brought a motion to change under r. 15 of the FLRs seeking to change the August 2022 order by granting him sole decision-making responsibility for the children after consulting with the respondent, and to restrict the respondent’s parenting time with the oldest child in accordance with the child’s views and preferences, among other things.

[6] Instead of responding within 30 days in accordance with the FLRs and the instructions set out on the motion to change form, the respondent filed a 14B motion form under r. 14(10) dated November 27, 2024. In the November 27 14B motion, the respondent sought, purportedly on consent, to set aside any order that she was in default and to extend the deadline for replying to the motion to change by another 30 days. As it turns out, the respondent had not been noted in default. In an affidavit dated December 5, 2024, a member of the applicant’s counsel’s law firm deposed that the applicant had been willing to extend the deadline for responding to the motion to change to December 27, 2024.

[7] The respondent’s November 27 14B motion was reviewed in chambers by Wilcox J. In an endorsement dated December 30, 2024, he pointed out that the 14B motion had not been served on the applicant’s counsel of record and that no consent had been attached to it. As a result, he adjourned the 14B motion to a case conference that had been scheduled for January 2, 2025.

[8] At the case conference on January 2, 2024, Bellows J. made an order on consent. Among other things, she provided the respondent with 15 days from that date (i.e., to January 17, 2025) to respond properly to the motion to change and required her to upload her materials to Case Center. The respondent did neither of these things. Therefore, on January 24, 2025 (seven days past the extension granted in the January 2 order), the applicant brought his own 14B motion seeking to note the respondent in default and to proceed with an uncontested trial.

[9] In response, the respondent filed another 14B motion dated January 28, 2025. This time, in addition to seeking to set aside any noting in default, the respondent asked for an order under r. 1(8) of the FLRs granting “additional orders” set out in her accompanying affidavit of that same date. As Wilcox J. pointed out in an endorsement dated February 5, 2025, the respondent’s January 28 affidavit consisted of 224 paragraphs and failed to comply with the FLRs in a number of respects, including by containing argument. Justice Wilcox also pointed out that the respondent’s motion went beyond the permissible scope of 14B motions, which are restricted to procedural, uncomplicated, or unopposed matters: r. 14(10). For that reason, Wilcox J. adjourned both the applicant’s January 24 and the respondent’s January 29 14B motions to February 14, 2025.

[10] The respondent deposes that she did not receive Wilcox J.’s February 5, 2025, endorsement before she brought yet another 14B motion on February 6, 2025. The relief requested in the February 6 14B motion extended even further beyond the permissible bounds of r. 14(10). In the February 6 14B motion, the respondent sought an order rescinding the applicant’s decision-making responsibilities regarding both children and requiring that his parenting time with the youngest child be supervised, among other things.

[11] Once again, Wilcox J. reviewed the respondent’s 14B motion in chambers. In an endorsement dated February 6, 2025, in addition to repeating himself regarding the requirements of r. 14(10), Wilcox J. pointed out that the respondent had failed to serve the 14B motion in accordance with r. 6 of the FLRs. Once again, he adjourned the 14B motion to February 14, 2025.

[12] Because the respondent had not served her February 6 14B motion on the applicant, its existence only came to the applicant’s attention when his lawyer, Mr. Gronfors, received a copy of Wilcox J.’s February 6 endorsement. On February 7, 2025, Mr. Gronfors wrote to the respondent, asking that she provide him with her February 6 14B motion materials before the end of the day so that the applicant would have time to reply before the February 14 motion date. Although the respondent sent several other litigation-related emails out thereafter, she did not provide her materials until the morning of February 10, 2025. Thus, the applicant was forced to submit a bare-bones affidavit that day, making a blanket denial of the respondent’s allegations, and addressing only some of the allegations in any detail.

[13] In response to the applicant’s February 10 affidavit, the respondent filed two affidavits dated February 11, 2025. One is her own. In the other, the respondent has involved her adult son from another relationship (with respect to whom the applicant once stood in the place of a parent) in the present conflict.

[14] And so it came to be that, on February 14, 2025, I had before me the applicant’s January 24, 2025, as well as the respondent’s January 28 and February 6, 2025, 14B motions. However, the respondent’s February 6 14B motion and her supporting affidavit, which had been filed in paper form, had not yet made it into the court file. Accordingly, I refused to hear argument on the February 6 14B motion and reserved my decision on the others.

Issues

[15] The issue before me is whether to note the respondent in default in accordance with the applicant’s motion or, instead, to grant the respondent any of the relief requested in her motions.

[16] The question is an easy one to answer.

Analysis

[17] As I found in my reasons on the summary judgment motion in 2021, the respondent is a paralegal: Schmidt v. Schmidt, 2021 ONSC 5044, at para. 38. The respondent does not deny that fact in the present proceedings. Instead, she expresses bewilderment as to why the applicant has mentioned it and opines that it is for the purpose of impugning and belittling her before the court. However, the reason is an obvious one to me. As I will explain, it has become clear that the respondent is using her knowledge of the legal system to weaponize it for her own purposes.

[18] The respondent offers two excuses for failing to comply with the FLRs. First, she professes not to have any knowledge of family law proceedings because that is not the area of the law in which she works as a paralegal. I do not accept this excuse.

[19] Regardless of the area of the law in which a paralegal works, our court has procedural rules that govern that area. Civil proceedings have the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Criminal proceedings have the Criminal Proceedings Rules, SI/2012-7. Family law proceedings have the FLRs. The respondent cannot be unaware of this. She has already been involved in family proceedings with the applicant in this court. If the respondent somehow forgot about the FLRs after that family proceeding ended in 2021, Wilcox J. provided her with two reminders of them in his endorsements of December 3, 2024, and February 5, 2025.

[20] The motion to change form itself (Form 15) also provides instructions on how to respond in compliance with the FLRs. And yet, the respondent continued to file non-compliant 14B motions, supported by inflammatory, argumentative, and objectionable affidavits. Not only do these materials fail to comply with the FLRs, but they also fail to comply with our court’s Consolidated Practice Direction for Family Proceedings at the Superior Court of Justice: Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice | Superior Court of Justice. Part I, F, 2(b), of the practice direction restricts primary affidavits in support of short motions to 12 pages and reply affidavits to five pages. The applicant’s January 28, 2025, 222-paragraph affidavit runs to 44 pages.

[21] The respondent’s alleged ignorance of the FLRs is belied by her strong reliance on them throughout her materials. For example, in her January 28, 2025, affidavit, the respondent alleges that the applicant is in breach of r. 1(8) and alleges that he has further failed to comply with rules relating both to the form and substance of his motion to change. A further example of the respondent’s familiarity with the FLRs arose during argument of the motion. At the conclusion of the hearing, I asked the parties what they would look for in costs in the event that each was successful on the motion. In response to the submissions of Mr. Gronfors on behalf of the applicant, the respondent submitted that costs submissions should be made in writing following the release of these reasons because she had made an offer to settle. It is obvious from this submission that the respondent is quite familiar with the FLRs, including rr. 18 (relating to offers to settle) and 24 (relating to costs).

[22] The respondent also attempts to excuse her non-compliance with the FLRs and the January 2 order by deposing that she has been ill. I do not accept this excuse, either.

[23] The respondent first raised the issue of her health as an excuse for non-compliance in her November 27, 2024, 14B motion. In her supporting affidavit of that date, she deposed that, between October 18 and October 21, 2024, she “received urgent medical care at the North Bay Regional Health Centre for a sudden, unexpected medical emergency.” She deposed that she had been referred for ongoing urgent treatment in Toronto and had not yet received a diagnosis. There is nothing in that affidavit, or in any of the other affidavits the respondent has since filed, about why her unidentified medical condition prevents her from complying with the FLRs or court orders, apart from the need for “frequent short notice travel between North Bay and Toronto”.

[24] Whatever the nature of the respondent’s medical issues, they have not prevented her from filing the 14B motions and the numerous affidavits in support of them to which I have referred earlier. Given that filing a proper response to the motion to change requires the same skill set and even less time than that required to prepare the improper responses filed so far, I do not accept that the respondent’s medical issues in any way impact her ability to comply with the FLRs or the January 2 order.

[25] Nonetheless, noting a party in default is a remedy that should not be resorted to lightly. It has the effect not only of depriving a party from participating in the litigation, but it also deprives the court of one potential source of evidence. This is an especially important consideration in cases like this one, involving children.

Conclusion

[26] For the foregoing reasons, I have determined that the respondent should be provided with seven days (including weekends) from the date of these reasons within which to file a response to the applicant’s motion to change in compliance with r. 15. If the appropriate response is not served upon counsel for the applicant and filed with the court by 4:30 p.m. seven days hence, the respondent will be automatically noted in default.

[27] Further, to ensure that the motion to change proceeds only on the basis of proper affidavit evidence, all of the materials filed by the respondent beginning with the 14B motion dated January 28, 2025, including all affidavits filed in support thereof, shall be stricken in accordance with subrule (c) of the FLR relied upon by the respondent, namely r. 1(8). They shall be placed in an envelope and marked “Materials stricken and sealed pursuant to the order of Ellies J.”. They shall not be referred to or relied upon without further order of the court, except by the applicant for the purposes of cross-examination of the respondent.

Costs

[28] The applicant was entirely successful on the motion. Therefore, he is entitled to costs. However, based on the submission made by the respondent during the hearing of the motion, the parties shall provide their submissions with respect to the issue of costs in writing, limited to three typewritten pages, excluding attachments, as follows:

(1) on behalf of the applicant, within 14 days of the date of these reasons; and
(2) by or on behalf of the respondent, within 14 days of the receipt of the applicant’s submissions.

[29] Submissions received beyond these deadlines will not be considered.

M.G. Ellies
Released: February 24, 2025