Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jocelyn Nadine de Boer (Cunningham), Applicant AND: Jason Arthur Cunningham, Respondent
BEFORE: Brochu J.
COUNSEL: Lauren Conti, for the Applicant Michael Hargadon, for the Respondent
HEARD: June 4, 2026
ENDORSEMENT on motion
Overview
1The following motions were before the Court:
The Applicant’s motion to strike specific portions of the Respondent’s materials.
The Applicant’s motion for a Views and Preferences Report to be completed by Darlene Niemi.
The Respondent’s WAGG motion.
2By way of Endorsement dated May 12, 2026, I addressed most of the issues on consent of the parties.
3The WAGG motion did not proceed as the Respondent had not served the third parties.
4The only issue left to determine is the following:
- Whether the following portions of the Respondent’s materials should be struck:
a. Paragraphs 9 to 59 of the Respondent’s Affidavit, sworn January 28, 2026.
b. The Affidavit of Alexandra Mackenzie, sworn February 17, 2026.
Background
5The parties were married on May 27, 2006. They separated on January 16, 2023. They were divorced on November 14, 2024.
6There are two children of the marriage, Auviahna Cunningham, born February 14, 2009, and Levi Cunningham, born January 24, 2012.
7The parties settled their matter on a final basis, on consent, by way of a final order dated November 14, 2024 (the “Final Order”).
8On November 17, 2025, the Applicant served a Notice of Relocation on the Respondent, proposing to relocate with the children to Alberta.
9The Respondent did not consent to the relocation. On December 23, 2025, he filed a Motion to Change.
10In response to the Applicant’s motion and in support of his motion to change, the Respondent filed his own affidavit dated January 28, 2026 (the “Cunningham Affidavit”) and the affidavit of Alexandra Mackenzie, dated February 17, 2026 (the “Mackenzie Affidavit”).
Law and Analysis
11Subrule 1 (8.2) of the Family Law Rules, O. Reg. 114/99, permits the court to 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 process.
The Mackenzie Affidavit – Staff as Affiants of Affidavits
12In CAS v. N.A.-M., 2018 ONSC 978, at paras. 26-28, the Court stated the following:
[...] Affidavits sworn by a person who records the evidence through information and belief, at best, can only be given limited weight, as such affidavits lack important safeguards, particularly the ability to provide meaningful responses in cross-examination.
The subset of lawyer's affidavits, or that of their staff which are based on information and belief are particularly problematic unless they serve only to summarize matters of record, or uncontested facts.
To go beyond procedural statements is to risk the Affidavit being perceived as nothing more than the lawyer’s views; and to invite the possibility of the solicitor being removed for a conflict of interest should her or her firm’s employee be the material witness at trial.
13In this case, counsel for the Respondent filed the Mackenzie Affidavit to provide the following information:
To document the criminal matter, and contents of the criminal disclosure – paras. 3-18 and 24-26.
To document the involvement of the OCL in the previous family matter – paras. 20-23.
To set out the parties’ positions in relation to the previous WAGG motion – paras. 27-28.
14As noted above, the Respondent has brought a WAGG motion. The Applicant is opposing the motion on the grounds that the information sought is not relevant to the issues now before the Court, i.e. the relocation and motion to change.
15Counsel for the Respondent advanced that the Mackenzie Affidavit is required for the purpose of the WAGG motion as he will be required to convince the Court that the criminal disclosure is relevant to the determination of the other motions before the Court.
16It is advanced by the Respondent that he finds himself in a “catch 22” situation wherein he requires the affidavit for the purpose of arguments on his WAGG motion but yet is being met with the argument that it should be struck because it contains information that should only be disclosed once the WAGG motion is granted.
17I find that the only potentially relevant use of the Mackenzie Affidavit would be limited to paragraphs 3-18 and 24-26 as it relates to the WAGG motion. It does offer evidence on why it is felt the contents of the criminal disclosure may be relevant. I leave it to whoever will hear the WAGG motion to determine the weight, if any, to be attributed to this evidence.
18Consequently, the Mackenzie Affidavit is struck, and is not to be used in these proceedings, other than for the above limited use, for the hearing of the WAGG motion.
The Cunningham Affidavit
19Many of the arguments advanced by the Applicant in her motion to strike were related to the Response filed by the Respondent. It was agreed that this document should be struck. This was addressed in my Endorsement dated May 12, 2026.
20The remaining issue is whether large portions of the Cunningham Affidavit should also be struck.
21In Alsawwah v. Afifi, 2020 ONSC 2883, at para. 108, Kurz J. reminded parties on the unhelpfulness of unnecessary and inflammatory materials, and stated as follows:
In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:
Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
Nor are we swayed by rhetoric against the other party that verges on agitprop.
Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.
Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.
22I have reviewed the Cunningham Affidavit in the context that it was filed in response to the Applicant’s request to relocate and also in support of his motion to change.
23Although a “tit for tat” approach is discouraged by the Court, I do note that the Applicant raised in her materials the criminal charges against the Respondent, the history of the proceedings, and many other issues. I understand that the Applicant was not represented by counsel at that time. But for counsel to now take the position that the Respondent’s reference to matters that occurred prior to the Final Order is irrelevant, inadmissible, an attack on a consent Final Order and should be struck, is disingenuous.
24The Applicant in her materials is specifically referencing the history of this matter in her attempt to justify that the relocation is in the best interest of the children.
25Of course, the Respondent felt the need to provide his view of what transpired. Furthermore, it is his position that the Applicant has succeeded to a certain extent in alienating the children, and that the request to relocate is yet another attempt to further draw a wedge in his already strained relationship with his children.
26The parties previously resolved this matter by consent Final Order dated November 14, 2024. Almost to a day, a year later, on November 17, 2025, the Applicant sent the Respondent a Notice of Relocation through Our Family Wizard. The affidavit filed in support of her motion is significant and replete with information going back to events that pre-date the Final Order. Those are facts upon which she is relying to advance that a relocation should be granted.
27On the other hand, the Applicant is also requesting that the Court should not allow the Respondent to respond to these allegations and offer comparable evidence.
28In my view, both parties have offered evidence in their respective materials that goes beyond what is necessary and relevant in these proceedings. At this stage, and to avoid having to deal with competitive motions to strike, I have allowed some of the evidence contained in the Cunningham Affidavit that respond to the matters advanced by the Applicant, which offers some context and is not completely irrelevant considering the matter.
29I will address the Cunningham Affidavit by referring to the sections as outlined in the affidavit and will only address the sections that have been struck.
30I have adopted a broad stroke approach in striking portions of the affidavit – I did not segregate a line here and there from a sentence and/or a paragraph that may be appropriate. The below is organized by following the headings in the Cunningham Affidavit.
My Criminal Disclosure
31In this section, the Respondent relays to the Court the contents of the police disclosure, and specifically the statement provided to police by Levi. This is improper given that the WAGG motion is outstanding and as a result, this evidence is not admissible. This is akin to the affiant attempting to get through the backdoor what he cannot get through the front door, at least until such time as the WAGG motion is determined.
32Consequently, paragraphs 21 to 26 of the Cunningham Affidavit are struck.
My Criminal Case
33I simply want to note that this section, although referencing the criminal matter, does not relay specific information contained within the criminal disclosure.
34In the family proceedings, the Respondent is entitled to advise the Court why he dealt with his criminal charge in a certain way. There is no question that this is his view of the criminal matter, so not much weight can be attributed to this evidence by the Court. Nonetheless, it offers an explanation as to why he decided to enter into a peace bond.
Evidence Relating to Negotiations and Settlement
35A great deal of evidence is offered in the Cunningham Affidavit regarding settlement negotiations between the parties. This information is irrelevant, as is the attached correspondence exchanged between counsel and the OCL.
36I note that the correspondence attached as exhibits to the Cunningham Affidavit include correspondence between counsel for the parties, exchanges between the Respondent and his counsel, exchanges between the parties, and correspondence with the OCL. Included as exhibits is an offer to settle, settlement conference brief, and proposed minutes of settlement. To a certain extent, the Respondent is attempting to take us through the negotiation process of the consent Final Order. This information is not relevant to the matters before the Court.
37The only time correspondence exchanged between counsel during settlement negotiations becomes important is when there is a dispute on terms of settlement. That is not the case here.
38There is no dispute that the parties resolved the matter on a final basis by incorporating the terms in the Final Order of Fregeau J. dated November 14, 2024. The ongoing negotiations are immaterial in these circumstances. There is no doubt that the Respondent was not happy with the settlement, but he nonetheless agreed to it.
39For these reasons, the following paragraphs of the Cunningham Affidavit are struck:
My Family Case – paras. 30 to 33.
50-50 Access Arrangements – paras. 37 to 45.
My Relationship With My Children Declines – paras. 47 and 49.
Negotiations Continue – paras. 50 to 52 and 55 to 58.
40For the sake of clarity, the following exhibits are also struck in their entirety:
- Exhibits E, F, G, H, I, J*, K, L, M, and N. (*see comment below at para. 42)
41I note that the exhibits as listed in the Cunningham Affidavit do not always match the exhibits as identified and attached. The above lettered exhibits reference the attached exhibits.
42As it relates to Exhibit J, this is a data dump from Our Family Wizard. It includes 440 messages between the parties and represents the entirety of the parties’ exchange on this platform from November 19, 2023, to December 12, 2025. It is not for the Court to parse through these messages to determine what may be relevant to the issues before the Court. Should the Respondent wish to bring a particular exchange to the Court’s attention, he can file a supplementary affidavit outlining what may be of relevance.
Conclusion and Order
43In summary, the following are my findings on the motion to strike the Mackenzie and Cunningham Affidavits.
44The Mackenzie Affidavit is struck and is not to be relied upon in any of the motions, except for limited use in the WAGG motion. This is also limited to paragraphs 3-18 and 24-26. As noted above, the judicial official who will be hearing the WAGG motion can determine the weight, if any, to be attributed to this evidence.
45The following paragraphs and exhibits are struck from the Cunningham Affidavit:
paras. 21 to 26; 30 to 33; 37 to 45; 47, 49 to 52; and 55 to 58.
Exhibits E, F, G, H, I, J*, K, L, M, and N. (*see comment above at para. 42)
Costs
46If the parties cannot agree on costs, the Applicant shall serve and file costs submissions within 10 days of the release of this endorsement. The Respondent’s submissions shall be served and filed within 10 days of the receipt of the Applicant’s submissions. Any reply submissions shall be served and filed within 5 days of receipt of the responding submissions. All costs submissions shall not exceed three pages, not including any offers to settle or bills of costs.
47Submissions received beyond these deadlines will not be considered. Costs will be deemed settled.
Brochu J.
Date: June 22, 2026
CITATION: de Boer v. Cunningham, 2026 ONSC 3658
COURT FILE NO.: FS-23-0018-01
DATE: 2026-06-22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jocelyn Nadine de Boer (Cunningham), Applicant AND: Jason Arthur Cunningham, Respondent
BEFORE: Brochu J.
COUNSEL: Lauren Conti, for the Applicant Michael Hargadon, for the Respondent
ENDORSEMENT ON MOTION
Brochu J.
Released: June 22, 2026