Should a litigant provide the court with relevant information, even if it is not helpful for their case?

• by Amruta Ponkshe

Originally published in the OFLM 2023-7 edition


Rolfe v. Boneo (2023 ONSC 2269) is a tale about a litigant who went to court and failed to disclose an important part of their own story. Which part? Well, an event that he tried to hide from not only his ex-spouse, but also the court.

The missing piece of information was in fact an ex parte motion that he brought earlier and that was dismissed. For reasons we can guess, the father never subsequently served the motion material or the endorsement onto the other party. What made matters worse was that Justice Pazaratz only discovered this fact upon his own review of the court file prior to the hearing of the mother’s subsequent motion.



In Rolfe v. Boneo (2023 ONSC 2269), the parties never married and separated in January 2019. At that time, their child was about four months old, and the parties consented to a final order which included sole custody to the mother and liberal and generous access to the father.

Nothing eventful happened for approximately four years until December 2022 when the mother delivered the now four-year-old child to the father for an overnight visit. The father refused to return the child and refused to allow the mother any contact for about three and half months.

On March 29, 2023, the mother served the father with an urgent motion which included a request that the child be returned to her care immediately, with a police enforcement clause if the father failed to comply.

The mother was granted authorization to proceed with an emergency motion, with the ultimate issue of “pre-Case Conference urgency” to be determined by the presiding judge.




Motion before Justice Pazaratz

The mother’s urgent motion was placed on Justice Pazaratz’s motion list for April 12th, 2023. The father did not file any materials in response to the mother’s March 29th, 2023 motion.

However, while reviewing the electronic court file in preparation of the upcoming motion, His Honour noticed that the then self-represented litigant had previously brought his own ex parte motion which was heard – and dismissed – by Justice Lafrenière.

Neither the father’s Notice of Motion and Affidavit, dated January 5, 2023 nor Justice Lafrenière’s endorsement dated January 11, 2023 had ever been served on the mother.

On the April 12th return date of the mother’s motion, the father attended with counsel who had served a Reply affidavit on the mother’s counsel.

In the father’s Reply affidavit, he did not mention his earlier failed ex parte motion.

At the outset, His Honour addressed the elephant in the room relating to his discovery of the earlier litigation brought by the father.

Not unexpectedly, the mother, her lawyer, and the father’s lawyer were each taken by surprise. They indicated that they were unaware of the earlier materials, or the fact that the father had previously made an unsuccessful attempt to obtain an ex parte order.


Credibility Issues

In comparing what the father said in his January 5th affidavit to what he said in his April 6th affidavit, it became clear to Justice Pazaratz that there were significant credibility issues in relation to the father even predating the current motion.

-The father outrightly deceived Justice Lafrenière back in January by advising that there were no existing orders dealing with parenting issues and there were no written agreements between the parties. This was not true since the mother had sole custody pursuant to a final order that the father had consented to four years earlier.

-Justice Lafrenière found that the father had provided no evidence which would justify proceeding without notice to the mother.

-In his April 6th affidavit, the father stated that since the final order was made in 2019 he has had the child in his care “50-80% of the time”. But in his January 5th affidavit, he claimed that the parties had “shared time on an equal basis”.

-In his January 2023 affidavit the father alleged that the mother hadn’t had a stable residence since the child’s birth in September 2018. Justice Pazaratz questioned why the father waited until December 31, 2022 to suddenly withhold the child based on vague and undated allegations and consented to an order granting the mother sole custody in January 2019 if the father truly had this concern.



Despite the father withholding such an important part of the ligation history, the mother’s lawyer sought costs of only $500.

In response, and yet another surprise, the father opposed agreeing to the costs.

The father’s opposition appeared to be consistent with his earlier litigation tactics. (As an aside, it would also be interesting to know what his lawyer advised him to do and what were his instructions.)

Nonetheless, Justice Pazaratz noted that the hearing of the mother’s motion had become much more protracted as a result of the last-minute discovery of the father’s motion.

Justice Pazaratz went on to discuss Rule 24 and the jurisprudence that guides courts in determining costs in family law proceedings. He found that knowingly misleading the court to obtain an ex parte order constituted bad faith on the father’s part.

Justice Pazaratz also noted that awarding costs on a full recovery basis to sanction a party’s bad faith actions is necessary and appropriate to discourage abuse of the court process. Further, there was no possibility that a nominal request for $500 was anywhere near “full recovery.”

Still, the court’s hands seemed to be tied and the order was limited to the $500 that the mother sought. Pazaratz J. took into account that costs had to be determined based on the mother’s successful April 2023 motion, and not the father’s unsuccessful January 2023 ex parte motion.



Justice Pazaratz’s Tale of Caution

Despite the relatively small cost award, Justice Pazaratz warned that a litigant cannot exercise self-help and then sit back, while a new status quo evolves in their favour.

Instead, if a parent unilaterally changes the status quo based on alleged safety concerns, they must seek the court’s approval at the earliest opportunity.

The father had no justification in his attempt to dramatically change the child’s placement without notice to the mother and without affording the court the opportunity to hear both sides.

Moreover, there could be no justification for the father trying to obtain a parenting order based on misstatements and one very big lie.

In the context of ex parte motions, it is especially important for lawyers to ensure that every piece of relevant information is placed before the court. Lawyers (and their clients) should remember that cherry picking facts to suit their case is a non-starter.  

As noted by Justice Pazaratz, the contents of motion materials, especially affidavits – and indeed the mere fact that an urgent or ex parte motion was attempted – may be highly relevant in assessing credibility, motivation, reasonableness, consistency and parental judgment.