2016 NLCA 4, 2016 NLCA 4

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : Hynes v. Snook , 2016 NLCA 4 Date : January 28, 2016 Docket : 201501H0067 BETWEEN : BARRY GERARD HYNES INTENDED APPELLANT AND : SHARON ANN SNOOK INTENDED RESPONDENT Coram : White J.A. Court Appealed From : Supreme Court of Newfoundland and Labrador Trial Division (F) 201502F0205 Application Heard : January 26, 2016 Decision Rendered : January 28, 2016 Reasons for Decision by White J.A. Counsel for the Applicant : Jean Dawe Q.C. Counsel for the Respondent : Nick Avis Q.C.

White J.A.: [ 1 ] The parties are engaged in a protracted and acrimonious dispute over claims for partner support and entitlement to property. [ 2 ] Although Ms. Snook, the Applicant in the Trial Division (Family) and Intended Respondent in this Court, filed her application for support in March of 2015, the proceedings have not advanced past the preliminary stage. The parties’ battles over a multiplicity of preliminary issues have brought them to this Court.

[3] Mr. Hynes, the Respondent below and the Intended Appellant in this Court, applies for leave to appeal an August 19, 2015order of Fry J., made during a case management conference, ordering him to provide a financial statement and financial information. Heapplies for a stay of that ruling pending appeal. [4] Ms. Snook opposes the stay and makes her own application to strike the notice of appeal and seeks costs on a solicitor-clientbasis. [5] Counsel for Mr. Hynes raised two preliminary points before the hearing of the applications. She noted that Ms.

Snook’sapplication to strike the notice of appeal, filed January 20, 2016, which was brought in response to his stay application, filed January 19,2016, was not filed within the timelines required by the Rules. I indicated to the parties that it would be most expeditious if theapplications could be heard together, and both agreed with this suggestion. [6] Second, counsel for Mr. Hynes objected to my consideration of certain documents in the Intended Respondent’s addendum tothe appeal book as not being relevant to the appeal.

I need not decide this issue as those documents have no bearing on my decision onthese applications. [7] I regard the determinative factor in both applications as whether or not there is sufficient merit to the appeal such that it is notfrivolous, vexatious or without merit (See RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R.311 at 337 which sets out the test for a stay, and rule 57.17(1)(

d) of the Rules of the Supreme Court, 1986 which sets out the test to strikea pleading). [8] Counsel for Mr. Hynes submits that the case management judge erred in ordering financial disclosure because, according toMr. Hynes’ view of the facts, Ms. Snook’s claim has no merit. In particular, he submits that, despite residing together for some twentyyears the two were strangers who were never in a conjugal relationship or “partners” within the meaning of the Family Law Act,R.S.N.L. 1900, c. F-2 (FLA). Moreover, he submits the two separated more than two years prior to Ms. Snook’s support applicationbeing filed, which means her claim is statute barred by

section 60 of the FLA. During the hearing, counsel also added further groundsand submitted that Ms. Snook is unable to show, as required by the FLA, that she was ever a dependent of Mr. Hynes, or that she has anypresent need. [9] Essentially counsel for Mr. Hynes submits that the Family Court has no jurisdiction to make orders under the FLA until anapplicant establishes that she or he is entitled to claim the benefit of that statute. In this case, the proposition is that Ms.

Snook mustmeet a threshold test by establishing that 1) she is a “partner”; 2) was not separated for more than 2 years before commencing her action;3) was a dependent of Mr. Hynes; and, 4) has present need. All this to be determined by the court (and potentially affirmed on appeal)before there is any right to seek an interim order of any type whatsoever. [10] Mr. Hynes’ submission fundamentally misunderstands the basics of the process of justice.

Applicants are not required toconclusively prove the merits of their cases before their lawsuits will be permitted to proceed to preliminary stages such as disclosure.When pleadings are filed alleging certain facts and claiming relief the case then proceeds in accordance with the process established bythe applicable statutes and Rules of court. If the case is an abuse of process or so lacking in merit that it is frivolous or vexatious, thereare remedies within the Rules themselves, such as an application to strike.

If there are preliminary issues, such as limitation periods, thatneed to be addressed, a respondent could avail of the processes in the Rules and make the appropriate applications, which a court mayaddress as it sees fit. Otherwise a suit is permitted to run its course, and the parties are required by law to participate, until the courtresolves the issues between them, or as is urged most often in family law matters, the parties take advice and settle. [11] Should a respondent prevail at the end of the day, costs are potentially available to compensate them for the expense of havingto respond to the action.

It is not open to respondents to simply reject the entirety of the court process because they do not see the meritof the other side’s claim. Such a suggestion flies in the face of the concept of the rule of law, and is a direct affront to the jurisdiction ofthe court. [12] Disclosure at the beginning stages of an FLA claim is required by the statute (section 48) and the Rules. Adequate documentdisclosure is essential to enable the court to fulfill its truth-seeking function. Rule 56A.21(5)(

a) expressly provides the case managementjudge with the authority to make an order for document disclosure as necessary and the relevance of particular documents is to bedetermined by the court, not by the position of any one party. Fry J. considered the situations of the parties before her and made an ordershe thought was appropriate to move the matter forward. She was fully authorized to do so by rule 56A.21(5)(a). [13] Therefore, it is plain and obvious that the appeal cannot succeed. The application for a stay is denied, as no bona fide triableissue has been raised.

The notice of appeal is struck. [14] The appeal unnecessarily created a multiplicity of proceedings, incurred costs and created delay. While not quite an appropriatecase for an award of costs on a solicitor-client basis, it comes close. (See Anstey v. St. John’s (City) 2014 NLCA 35, 356 Nfld. &P.E.I.R. 117, at para. 57). Ms. Snook will have costs on the applications on a party and party basis to be taxed at Column 5 of the Scaleof Costs. ____________________________________ C. W. White J.A.