Court File and Parties
CITATION: M. R. W. v. S. A. W., 2026 ONSC 666
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M. R. W., Applicant
AND: S. A. W., Respondent
BEFORE: The Honourable Justice J. Breithaupt Smith
COUNSEL: B. Kelly, Counsel for the Applicant (A. Yantz, Paralegal with Mr. Kelly) R. Niman and A. Chimirel, Counsel for the Respondent (N. Apolonia, Student-at-Law with Mr. Niman)
HEARD: February 2, 2026
RULING RE: ADMISSIBILITY OF EVIDENCE
1The parties were married for almost 20 years and separated in 2023. They have three children, two of whom are under the age of majority. In this proceeding, parenting issues are live inclusive of Ms. W.’s request to move with the two younger children from Waterloo Region (where the family has been resident since July of 2021) to the Greater Toronto Area.
2Mr. W. today seeks to adduce evidence about which he refused to attest during his Questioning, conducted under Rule 20 of the Family Law Rules on October 10, 2025. The issue about which he seeks to testify is central to this litigation and to the criminal proceeding in which Mr. W. is charged with voyeurism. The questions pertain to the installation and use of a camera in the parties’ bedroom. Ms. W. alleges that Mr. W. installed the camera without her knowledge or consent as part of a tone of family violence in the relationship. The issue of family violence is central to the analysis of the children’s best interests on parenting arrangements (per section 16(3)(j) and 16(4) of the Divorce Act) and bears significantly in the determination of the mobility issue (per the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 SCR 517).
3The transcript of Mr. W.’s Questioning is clear: he refused to answer questions associated with the placement of the camera for fear of self-incrimination having regard to the active criminal proceeding. The relevant portions from the transcript are:
- Q. Sir, it's a camera that you placed there?
A. I don't think I need to answer these questions because they relate to a criminal matter and they have nothing to do with my kids.
- Q. Oh they absolutely have something to do with your kids, but if you are taking the position that you are not going to answer questions on that, I would like to be clear so that I can consider what protections you are taking?
A. Yes, I will not answer questions related to the camera.
4It is clear that on October 10, 2025 Mr. W. refused to answer any questions regarding the placement of the camera. Until noon today, Ms. W. and her counsel had no knowledge of his evidence on that point. He now seeks to provide his explanation about the camera’s location, intention, and use.
5Counsel for Mr. W. today advises that his client’s position regarding such testimony changed sometime between the date of Questioning and trial preparation work conducted before December 23, 2025. It is undisputed that neither an update regarding Mr. W.’s position nor any correction to the refusal at Questioning was provided. We are now on Day 5 of this trial, some six weeks after December 23, 2025.
6Counsel for Ms. W. objects to the evidence on the basis, effectively, that it is trial by ambush and asks that it be ruled inadmissible under Rule 20(19)(b). Counsel for Mr. W. asserts that a motion compelling an answer to the refusal should have been brought under Rule 20(19)(a) and that, pursuant to Rule 20(20), the Court is compelled to admit the evidence as the only potential prejudice is to Mr. W. himself. I directed both counsel to provide submissions regarding Rule 20(21), which addresses corrections to evidence provided at Questioning, which they did.
7The text of the applicable sub-rules of Family Law Rule 20 reads:
(19) If a person being questioned refuses to answer a question,
(a) the court may, on motion,
(i) decide whether the question is proper,
(ii) give directions for the person’s return to the questioning, and
(iii) make a contempt order against the person; and
(b) if the person is a party or is questioned on behalf or in place of a party, the party shall not use the information that was refused as evidence in the case, unless the court gives permission under subrule (20).
(20) The court shall give permission unless the use of the information would cause harm to another party or an unacceptable delay in the trial, and may impose any appropriate conditions on the permission, including an adjournment if necessary.
(21) A person who has been questioned or who has provided information in writing by affidavit or by another method and who finds that an answer or information given was incorrect or incomplete, or is no longer correct or complete, shall immediately provide the correct and complete information in writing to all parties.
8Ms. W. has maintained consistently that she wants this trial to be conducted as efficiently as possible. She does not want an adjournment, although that is one of the areas of relief contemplated by Rule 20(20).
9I disagree that Ms. W. had a positive obligation to chase down Mr. W.’s refusals through a motion. She is entitled to rely upon Mr. W.’s choice not to disclose material evidence in arguing at trial that such evidence should not be admitted.
10I further disagree that Mr. W. is the only one potentially prejudiced by the evidence that he seeks to provide. In fact, the reality is exactly the opposite, and that is the point. When, at Questioning, Mr. W. thought that his testimony could be used against him in the criminal proceeding, he refused to answer. Now he knows that, pursuant to section 5(2) of the Canada Evidence Act and section 9(2) of the Ontario Evidence Act, his evidence in this family proceeding cannot be used against him other than to impeach future testimony. He is now ready to testify. It is precisely this removal of the potential prejudice to Mr. W. that gives him the confidence to testify on this topic today. Thus, it would be inconsistent to conclude that Mr. W. is potentially harmed by his own testimony.
11In contrast, Ms. W. has lost the benefit of Questioning on this central subject. As noted by Justice Campbell at paragraph 7 of General Motors of Canada Ltd. v. The Queen, 2006 TCC 184:
[7] The three principle objectives of discovery proceedings were stated in Modriski v. Arnold, [1947] 3 D.L.R. 321 (Ont. C.A.) as follows:
To enable the examining party to know the case he has to meet;
To enable him to procure admissions which will dispense with other formal proof of his own case; or
To procure admissions which will destroy his opponent's case.
More recently, some decisions have added a fourth objective: (Violette v. Wandlyn Inns Ltd., [1995] N.B.J. No. 574:
- To facilitate settlement.
12Certainly, the first three of these objectives have been thwarted by Mr. W.’s refusal to answer at Questioning and his subsequent failure to provide corrected information as required by Rule 20(21). (As this is a mobility case involving allegations of family violence, I decline to consider any potential salutary effect that corrected answers might have had on settlement discussions around parenting issues, which would nonetheless be contested.) The prejudice to Ms. W. is real.
13However, as counsel for Mr. W. points out, the language of the Family Law Rules is distinct from that used in the Rules of Civil Procedure on the same subject. Rule 31.07 provides:
31.07 (1) A party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question if,
(a) the party or other person refuses to answer the question, whether on the grounds of privilege or otherwise;
(b) the party or other person indicates that the question will be considered or taken under advisement, but no answer is provided within 60 days after the response; or
(c) the party or other person undertakes to answer the question, but no answer is provided within 60 days after the response.
(2) If a party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question as described in subrule (1), the party may not introduce at the trial the information that was not provided, except with leave of the trial judge.
(3) The sanction provided by subrule (2) is in addition to the sanctions provided by rule 34.15 (sanctions for default in examination).
(4) For greater certainty, nothing in these rules relieves a party or other person who undertakes to answer a question from the obligation to honour the undertaking.
14The Rules of Civil Procedure carry a similar obligation for a party to correct his or her answers at Rule 31.09 and provide the sanction that the party “may not introduce the information at trial, except with leave of the trial judge” if the information is favourable to the party’s case.
15It is a trite rule of statutory interpretation that different terminology or phrasing is presumed to be intended to carry different meaning. Here, while the Rules of Civil Procedure presume that the evidence may not be introduced at trial except with leave of the Court, the Family Law Rules presume the opposite – that the Court shall allow the evidence unless “harm” is demonstrated.
16Had this been a civil trial, the outcome for Mr. W. would have been obvious – he would have been prohibited, by his own failure to correct his out-of-court testimony, from introducing this material now.
17Having regard to the language of Family Law Rule 20(20), however, we are therefore left to weigh prejudice to each of the parties. On the one hand, Mr. W. may suffer potential prejudice if he chooses to testify in the criminal proceeding and gives evidence in contrast to the testimony he seeks to present here, in which case today’s transcript can be used by the Crown Attorney to impeach his credibility. On the other hand, Ms. W. has suffered actual prejudice in that her legal team is being asked to pivot strategy to address this evidence at the last minute. In the context of the Family Law Rules, it is only if I find the prejudice to Ms. W. to be such that “harm” is caused to her that I have the discretion to refuse to admit Mr. W.’s evidence.
18Had Ms. W. been the Applicant in this matter, and had she been limited to responding to this anticipated evidence by way of reply, I would have had no difficulty in concluding that “harm” had been caused to her. As she is the Respondent, she has the benefit of hearing all of Mr. W.’s testimony – including his evidence about the camera – before providing her own evidence. While this is still a considerable imposition, trials are regularly unpredictable and require strategic changes on-the-fly. Again, underscoring that I would not have allowed this evidence under the Rules of Civil Procedure, I find that the presumption in favour of admissibility coupled with the higher threshold of “harm” rather than “prejudice” under the Family Law Rules compels me to admit it.
19Mr. W.’s strategic withholding of this critical information cannot go unaddressed, however. Rule 20(20) authorizes me to “impose any appropriate conditions on the permission” that I must otherwise grant to the inclusion of this evidence. Pursuant to Rules 1(8) (a) and (a.1) and 1(8.1), I order that Mr. W. pay the amount of $5,000, being $2,500 for costs for the anticipated additional work required by Ms. W.’s counsel and a further $2,500 as a fine for his failure to correct his answer as required by Rule 20(21). The total amount of $5,000 will be payable by Monday, February 9, 2026 at 6:00 p.m.
J. Breithaupt Smith J.
DATE: February 2, 2026