Justice Grace of the Ontario Superior Court of Justice set a somber tone in his opening comments in Spero v. Dean:
“Sadly, once married parties are no longer joined in heart, body or soul but as antagonistic parties in an ocean of family and civil litigation. This will form a small part of one chapter of the still growing saga.”
Justice Grace’s endorsement related to two motions brought by the parties, who have been engaged in an ongoing family law battle:
- The husband was seeking to transfer the proceeding from Toronto to London; and
- The wife was seeking an order compelling the husband to disclose the source of information about a program and courses she was taking at College.
As stated by the Court, these motions were but a “…small part of one chapter of the still growing saga.” Justice Grace was clearly troubled by the history of the proceedings between the parties, noting that twelve volumes of factual and legal material had been assembled for the two motions alone. A dire warning followed:
“The path to mutually assured economic destruction is brightly lit.”
The Court’s Disposition
1. The Motion to Transfer the Proceeding
After satisfying itself that the transfer of the proceeding from Toronto to London was desirable in the interest of justice having regard to nine (equally important) factors, the Court granted the husband’s motion. The 9 factors the Court must consider are set out in Rule 13.1.02(2)(b) of the Rules of Civil Procedure:
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter. O. Reg. 14/04, s. 10.
2. The Motion to Compel Disclosure
At the time these motions were heard, the parties had not yet agreed to a discovery plan and examinations for discovery had not been held. In seeking disclosure of the source of the program and course information, the wife was essentially seeking early discovery of one piece of information. The Court could not find any compelling reason to allow such a piecemeal approach to the discovery process. Any repetition of the alleged wrongful conduct (sharing the personal information), was highly unlikely and disclosure of the source at this point wouldn’t undo the conduct or alleviate the wife’s resulting anxiety. “What’s done is done.”
Rather than dismiss the wife’s motion, the Court adjourned the motion, allowing her to bring the issue back to the Court if the husband refused to disclose the source of the program and course information at a future examination for discovery or other appropriate date.
A Culture Shift in the Conduct of Civil Proceedings
What is perhaps most compelling about this endorsement are the Court’s concluding comments and direction. After expressing concern about the history of proceedings between the parties – economic and psychological – the Court quoted the Supreme Court of Canada in Mauldin v. Hyrniak:
“This culture shift requires judges to actively manage the legal process in line with the principle of proportionality…While judges can and should play a role in controlling…risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.”
In a clear attempt to help mitigate the obvious upcoming “economic destruction” and psychological consequences faced by the parties, pursuant to Rule 50.13(1) of the Rules of Civil Procedure, Justice Grace directed that a case conference be held at an early future date, and directed the parties’ counsel to use their best effects to agree to a discovery plan and a timetable for all remaining steps in the action.
As we know, court proceedings are public, time-consuming and expensive. Fair and balanced settlements of family law issues can be achieved through mediation, and, in fact, it’s the most common route to resolution.
If you have any questions about mediating disputes or any family law matter, please contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.
