“Family Law Rule 1(8.2) states that the court may “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.” As confirmed in Frick v Frick 2016 ONCA 799, a document includes a pleading.
The Respondent father argues that a single sentence in paragraph 41 of the Applicant’s Reply is “inflammatory” and for this reason should be struck.
Paragraph 41 of the Applicant’s Reply reads as follows, with the sentence in question in italics: “
To date, Kiran has not paid any child or spousal support to Stephanie, aside from a one-time payment of $2,000.00. Even after numerous requests through counsel for Kiran to start paying a monthly amount on a temporary, without prejudice basis, Kiran has refused to make any other payments, despite having the financial means to do so. When the COVID-19 outbreak first began and Stephanie asked that Kiran provide her with funds to take a taxi or ride share for access exchanges so Amell would not have to take public transit and possibly be exposed to the virus, Kiran refused.
Inflammatory is defined in Blacks Law Dictionary as “tending to cause strong feelings of anger, indignation, or other type of upset; tending to stir the passions”.
Courts have found statements to be inflammatory when they are irrelevant to an issue in the case or consist of personal attacks.
In Frick, statements in the wife’s Application about the Respondent husband’s extra-marital conduct were struck under Rule 1(8.2). The court explained that the statements were inflammatory because they “provide a springboard to question the husband about his extra-marital conduct, not about his net family property”. Further, “extending questioning of the husband’s conduct …that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.”
In Norris v. Norris, 2016 ONSC 7077 at paras. 66-68, paragraphs in a factum included “commentary questioning the competence and professionalism of opposing counsel”. The remarks were found to be inflammatory and struck from the factum.
In Cheng v. Yu, 2017 ONCJ 563 at paras. 107-111, statements in a non-party’s affidavit were found to be inflammatory because the language was unnecessary and unhelpful to the party that filed the affidavit and “only further intensifies the conflict in an already high conflict case.” The court refused to strike the statements. Instead no weight was given to the statements that the court characterized as hyperbole and personal attacks.
As explained below, the Respondent has not shown that the sentence in question is inflammatory. Even if it was inflammatory, and it is not, the decision to strike a pleading is not automatic. The law is clear that an order to strike pleadings is a drastic remedy that should only be applied in exceptional circumstances, where no other remedy would suffice (Callwood v. Callwood v. Purdy, 2020 ONSC 3657).
The Respondent has other remedies. He can question the Applicant about the sentence, he can serve a request to admit and if the application proceeds to trial he can cross-examine the Applicant.”