Reasons on Motion
Court File No.: CV-23-00000085-0000
Date of Release: 2025-06-16
Ontario Superior Court of Justice
Between:
D.H. Anderson Investments Inc., Plaintiff
and
Wilma Castanares, Defendant
Appearances:
Dan Rosman & Geraldine Acosta, for the Plaintiff
Mathew H. Hilbing, for the Defendant
Heard: June 13, 2025
Reasons on Motion
J.R. McCarthy
Introduction
[1] The second half of this two-part motion returns before me today.
[2] The court previously gave an order granting possession and control of the property at Suite 3402, 15 Viking Lane, Toronto (“the property”) to the Plaintiff.
[3] The Plaintiff now moves to strike portions of the statement of defence and counterclaim of the Defendant.
Legal Framework
[4] Pursuant to rule 25.11 of the Rules of Civil Procedure (“the rules”), the court may strike all or part of a pleading, with or without leave to amend, on the ground that the pleading:
a) may prejudice or delay the fair trial of the action;
b) is scandalous, frivolous, or vexatious;
c) or is an abuse of the process of the court.
[5] Rule 25.06(1) sets out the basic rule of pleadings: every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
[6] There is well-developed case law which has established these principles:
i) a party should not plead facts only to cast the opposing party in a negative light;
ii) alleged facts that are immaterial or irrelevant to issues in the action are inappropriate;
iii) pleadings that are argumentative, inserted for colour, or designed to embarrass the opposing party should be struck.
[7] A pleading will be deemed scandalous if it alleges misconduct or negative actions by a party that have no bearing on the claim: see Newton Crypto Ltd. v. Lebon, 2023 ONSC 5536, para 4.
[8] Section 21.8(1) of the Courts of Justice Act (“CJA”) requires that issues of spousal support, equalization of net family property and constructive trust or monetary awards for unjust enrichment between persons who have cohabited be commenced, heard and determined in the Family Court.
Analysis
[9] The statement of claim reveals a cause of action in trespass, ownership and control of property, and accompanying relief including damages.
[10] For its part, the statement of defence and counterclaim amounts to a breathtaking 23 pages and 87 paragraphs. The counterclaim seeks a declaration of beneficial ownership in the property together with spousal support and other related relief.
[11] The moving party asks the court to expunge 41 paragraphs of the defence and one paragraph of the counterclaim.
[12] For the reasons that follow, the second part of this motion is allowed.
[13] The Defendant’s pleading is not concise. Eighty-seven paragraphs are far too many given the issues framed in the statement of claim. The defence reads more like a romance novel than a pleading.
[14] The pleading is replete with evidence. In fact, the statement of defence does not even raise a legitimate defence (beneficial ownership of property) until paragraph 66. Almost everything before that is unnecessary narrative, irrelevant background, or an attempt to add colour. Portions of it are scandalous and clearly intended to embarrass.
[15] As the Defendant was not prepared to concede that any portion of its pleading should be expunged, the court is forced to engage in the laborious task of considering each paragraph. To have to engage in this task is distressing and represents an unnecessary drain on scarce judicial resources.
[16] As stated aptly by counsel for the Plaintiff, “some of the allegations speak for themselves.”
[17] I cite two in particular, paragraphs 41 and 57 which read as follows:
Wilma felt a sense of peace and contentment she had not previously known. Just when she thought things couldn't get any better, David's life went into a tailspin.
Wilma's birthday was July 20th. David never called or messaged to even wish Wilma Happy Birthday that week.
[18] These are nothing but irrelevant narrative and unnecessary colour. They have no place in a pleading and must be struck.
[19] I wholeheartedly agree and adopt the submission of the Plaintiff together with the commentary at Appendix “A” of the moving party’s affidavit. I would strike the below paragraphs of the statement of defence for the following reasons:
- #11 – irrelevant to the legal issues, pleads evidence
- #12 – irrelevant to the legal issues, pleads evidence
- #15 – irrelevant to the legal issues, pleads evidence
- #16 – irrelevant to the legal issues, pleads evidence
- #17 – irrelevant to the legal issues, pleads evidence
- #18 – irrelevant and superfluous, pleads evidence
- #19 – irrelevant and scandalous, pleads evidence to add colour
- #20 – irrelevant and scandalous, pleads evidence to add colour
- #21 – irrelevant, scandalous, inflammatory, designed to embarrass
- #22 – irrelevant, scandalous, and designed to embarrass
- #23 – irrelevant, pleads evidence
- #24 – irrelevant, pleads evidence
- #26 – irrelevant, scandalous and intended to embarrass
- #27 – irrelevant, designed to embarrass
- #34 – scandalous, adds colour and is designed to embarrass
- #39 – irrelevant, scandalous and designed to embarrass
- #40 – pleads evidence
- #41 – see above
- #42 – irrelevant, colour
- #43 – irrelevant, colour
- #44 – irrelevant, colour
- #45 – irrelevant, colour
- #46 – irrelevant and designed to embarrass
- #47 – irrelevant, scandalous, designed to embarrass
- #48 – irrelevant and scandalous
- #49 – irrelevant, scandalous, designed to embarrass
- #50 – irrelevant and scandalous
- #51 – irrelevant, colour
- #53 – irrelevant, designed to embarrass
- #54 – irrelevant, scandalous, designed to embarrass
- #55 – irrelevant, scandalous, designed to embarrass
- #56 – irrelevant, inserted for colour
- #57 – see above
- #60 – argumentative, pleads evidence
- #61 – argumentative, pleads evidence
- #63 – scandalous, irrelevant, designed to embarrass
- #70 – irrelevant, scandalous, and designed to embarrass
- #72 – irrelevant, scandalous and designed to embarrass
- #73 – irrelevant, invokes potential FLA relief (support) which is the domain of Family Court
- #74 – pleads relief within the jurisdiction of Family Court
- #76 – irrelevant, scandalous, and designed to embarrass
[20] The above paragraphs are hereby struck.
[21] Paragraph 84 of the counterclaim is also provisionally struck. It seeks remedies which are within the domain of Family Court. While constructive trust can be advanced in the civil counterclaim, it cannot stand together with the allegation that the parties cohabited. The Defendant must choose what it is she is alleging. That said, the striking of that part of the counterclaim shall be without prejudice to the Defendant pursuing that relief (i.e. transferring those aspects of her claim) in Family Court.
[22] With more than half of the Defendant’s pleading containing irrelevant, frivolous, scandalous and evidence-laden allegations, the pleading amounts to an abuse of process. It is fatally flawed and cannot be maintained or regularized with a series of amendments. The statement of defence and the counterclaim should be struck in their entirety with leave to the Defendant to serve and file a fresh as amended statement of defence and counterclaim which is compliant with the rules of pleading, with the governing authorities and statutes, and with this ruling.
[23] While I grant this leave to file a fresh pleading, the process needs to be tightly controlled lest the matter comes back before the court on the same issue on the amended pleading.
[24] I will remain seized of this matter. Prior to serving and filing the fresh as amended defence and counterclaim, the Defendant shall, as part of the ongoing motion, serve and file a draft proposed pleading for the court’s review, consideration and input.
[25] The court will also consider a motion by either party to transfer those issues raised in the pleading which may be captured by the Schedule to s.21.8 of the Courts of Justice Act to the Family Court.
[26] The motion shall return before me on a date to be assigned by the TC. On that return date, the proposed draft amended pleading will be considered by the court and the issue of costs of both parts of the motion shall be addressed.
[27] Order to accordingly.
J.R. McCarthy
Released: June 16, 2025