January 30, 2015

A decision of the Ontario Superior Court, Catford v. Catford 2014 ONSC 135 demonstrates the importance of getting pleadings right. In this case, the plaintiff sued his niece for “$670,000 or such other sum as may represent one-third of the Catford family estate”. The facts pled in support of this claim was that the plaintiff’s mother had allegedly severed ties with the plaintiff and “all support” (presumably financial). From this, the plaintiff inferred that he had been disinherited. He claimed that his disinheritance was a foreseeable consequence of his niece’s actions in “demonizing the plaintiff to his mother”. The plaintiff also pled that the defendant had alienated the affection of the plaintiff’s mother.

The defendant brought a Rule 21 motion to strike out portions of the plaintiff’s claim. Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.No evidence is admissible on this type of motion.  Instead, the judge must determine whether any of the plaintiff’s claims disclose a reasonable cause of action, or whether it is “plain and obvious” that the claims cannot possibly succeed.

Justice Healey found that there was no chance of success with respect to the plaintiff’s claim that the defendant had interfered with his inheritance rights to his mother’s estate. The problem (at least from the perspective of the pleadings, although probably not from her perspective) was that the plaintiff’s mother was still very much alive. As such, she retained “full discretion as to how to dispose of her estate.” The plaintiff’s claim was merely speculative, speaking to a possible future harm. There is no tort of interference with future inheritance, Justice Healey found.

As for the plaintiff’s pleading regarding the defendant’s “alienation of affection”, the court re-iterated the Supreme Court of Canada’s refusal to recognize this tort in Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.). One reason why the majority in Frame v. Smith refused to entertain such a remedy was the “undesirability of provoking suits within the family circle.”  The court frowned on the “spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access…”

The self-represented plaintiff, having been ordered by the court to amend his claim, was sent back to the drawing board. The costs payable to the defendant for this particular motion were $4,326.93 (the costs endorsement for both this and a related motion, is here).