2013 NBQB 172 Court File No.:, 2013 NBQB 172

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON Citation: 2013 NBQB 172 Court File No.: 1301-6501 Date: 20130521 File No: FDF-227-09 B E T W E E N: ANTHONY GEORGE JANES, Petitioner , - and - KERI ANN JANES, Respondent . DATE OF HEARING : April 17, 2013 DATE OF DECISION : May 21, 2013 BEFORE : Madam Justice Barbara L. Baird APPEARANCES : Shannon Doran, Esqe., on behalf of the Applicant Grant Ogilvie, Esq., on behalf of the Respondent BAIRD, J. [ 1 ] Mr. Janes filed a Petition for Divorce with the Registrar’s Office on March 2, 2012.

The petition was served on the respondent, Keri Ann Janes in the Province of Nova Scotia where she is residing. [ 2 ] He initially sought a joint custody order with respect to the children, Nathan Patrick Janes, born July 4, 1995, and Aeris Amanda Janes, born June 25, 1999. [ 3 ] He sought an order granting him generous and reasonable access to both children and he proposed a

schedule of access and visitation. [ 4 ] He proposed to pay support for the two children pursuant to section15.1 of the Divorce Act , and in accordance with the Federal Child Support Guidelines . [ 5 ] Additional relief included a request that both parties maintain their present medical insurance for the benefit of the children, and also a continuation of life insurance for the benefit of both children in trust. [ 6 ] The petition notes that the date of separation was April 5, 2007, with no prospect of reconciliation. [ 7 ] All matters with respect to the division of marital and non-marital property have been resolved.

[ 8 ] The respondent filed an Answer and Counter-petition with the Registrar’s Office in the Province of New Brunswick on January 4, 2013. (Exhibit R1) [ 9 ] In the answer and counter-petition she requested primary care of the two children, Nathan Patrick Janes and Aeris Amanda Janes with access and visitation to the petitioner as arranged and agreed upon between the petitioner and the respondent. [ 10 ] She sought an order for support of the two children of the marriage pursuant to

section 15 of the Divorce Act and in accordance with the Federal Child Support Guidelines . [ 11 ] She requested arrears in child support retroactive to June 1, 2011. [ 12 ] Under other relief she asked for an order requiring both parties to maintain their present medical insurance for the benefit of the children of the marriage and sufficient life insurance to secure the child support. [ 13 ] In her counter-petition, she did not seek relief pursuant to the Marital Property Act . [ 14 ] The answer and counter-petition were served on Mr.

Janes pursuant to rule 18.03(6) of the New Brunswick Rules of Court on February 5, 2013. (Exhibit R2) [ 15 ] Mr. Janes has not filed a responsive pleading to the answer and counter-petition, nor was there any indication that he intends to do so, however, I note, for the purposes of this decision, that theoretically these pleadings are not closed. In other words, Mr. Janes could file responsive pleadings to the counter-petition, if he wishes.

This is significant in so far as the Motion to amend his pleadings is concerned. [ 16 ] What brought the parties to the Court at this time, was a Notice of Motion filed by Mr. Janes on March 14, 2013, and served on solicitor, Diana M. Musgrave, counsel for Mrs. Janes on March 27, 2013. [ 17 ] The Notice of Motion seeks an order permitting Mr. Janes to amend his Petition for Divorce pursuant to

section 27.10(2)(

c) of the New Brunswick Rules of Court , and that this matter be set for trial immediately after the time period has expired for the “respondent” to file any amending documents. [ 18 ] It is unclear whether the respondent in this case is Mr. Janes, as the responding party to the counter-petition, or Mrs. Janes as the respondent in the main litigation. [ 19 ] Given the documents introduced during the motion hearing, I accept that Mrs. Janes by filing her answer and counter-petition has responded to the petition.

This is significant, as she obviously accepted the jurisdiction of the Court of Queen’s Bench of New Brunswick in the first instance. [ 20 ] Mr. Janes has not filed a response to the counter-petition; therefore, for the purposes of this motion, should I order that this matter be set down for trial, the Trial Record would be filed at a time after the filing of the responding documents to the counter-petition. [ 21 ] Mrs.

Janes did not file a Notice of Motion of her own, but chose to file and serve a responding affidavit which was sworn in Dartmouth, Nova Scotia on April 11, 2013, and which was not notarized. [ 22 ] In her responding affidavit she opposes the petitioner’s request to amend the petition for divorce, and she seeks an order transferring the jurisdiction of the court to the Province of Nova Scotia. [ 23 ] The affidavit was not notarized which is a requirement of the New Brunswick Evidence Act .

An affidavit taken before a notary in another Province must be notarized. (Section 78(2)(3) of New Brunswick Evidence Act , R.S.N.B. 1973, CE-11.) [ 24 ] The above forms the framework for the discussion in this decision and raises a number of issues that must be addressed, in my respectful opinion. [ 25 ] Those issues are as follows: 1. Does the Court have jurisdiction to amend the Petition for Divorce pursuant to

section 27.10(2)(

c) of the New Brunswick Rules of Court as requested by the petitioner? 2. Should the Court order that this matter be set down for trial immediately “after the time period has expired for the respondent to file any amending documents”, as requested by the petitioner? 3. What order for costs if any should follow? 4. Is the failure to notarize the affidavit filed by the Mrs. Janes fatal to this Court’s consideration of that affidavit evidence? 5. Does this Court have jurisdiction to consider Mrs.

Janes’ request that the matter be transferred to the Province of Nova Scotia, where she has not filed a motion of her own setting forth the statutory basis upon which such an order can be made? 6. In light of the filing of the Answer and Counter-petition, has Mrs. Janes attorned to this jurisdiction?

SUMMARY OF FACTS [ 26 ] To state the obvious, the factual background of this case is unique, and might I suggest, unique to most of the judiciary in this jurisdiction. [ 27 ] These parties were married on September 22, 1990, in Nova Scotia.

[ 28] In 1995, Nathan was born, and in 1999, Aeris was born. [ 29] Mr. Janes had a vasectomy approximately four years prior to the birth of Aeris. [ 30] When the respondent became pregnant, as Mr. Janes deposed in his affidavit, he assumed he was the biological father, and that the vasectomy had not worked. [ 31] The parties separated in 2007, and if Mr. Janes is credible, as he deposed in his affidavit, in 2010 he began to question the paternity of Aeris based on the fact that Aeris has browneyes, born to two parents who have blue eyes. [ 32] As a result of his doubts, Mr. Janes confronted Mrs.

Janes in May 2011, and was advised that she “assumed that she had permission to have sexual intercourse with a man known asLee Mitchell”, who she then admitted was the natural father of Aeris. [ 33] Noteworthy, is the fact that Lee Mitchell, has since had a sex change operation and is now known as Leah Marie Mitchell, lives in the United States, and has nothing to do withAeris. [ 34] The separation occurred on April 5, 2007. Mr.

Janes agreed through an “informal agreement” that he would pay $500.00 monthly for both Nathan and Aeris. [ 35] In May 2012, as a result of paternity testing, and in spite of attempts by Mrs. Janes to “try and stop the testing” and “to prevent the hospital from shipping the results”, Mr. Janesdiscovered that he was not the biological father of Aeris. [ 36] He is named on Aeris’ birth certificate, he does not have a relationship with her, does not wish to have a relationship with her, and in his affidavit deposes that Mrs.

Janes hasadmitted to me “now” that he is not the natural father of Aeris. [ 37] As a result of the paternity testing in May 2012, Mr. Janes requested an amendment to the Petition for Divorce which would eliminate his obligation to pay child support for Aeris,he withdrew his request for a custody and access order given the age of Nathan, and his desire not to have any contact with Aeris, he is prepared to pay child support for Nathan, provided he is a child of the marriage at thetime of the trial, and he wants an order removing his name from the birth certificate for Aeris.

He is prepared to maintain medical and dental insurance for Nathan for so long as the policy permits, he seeks an orderremoving any obligation to pay retroactive child support and extinguishing arrears, and he is seeking costs. [ 38] There has been no examination for discovery, although counsel advised that this has not been ruled out.[ 39] Mrs. Janes opposes the amendment, ostensibly on the basis that Mr. Janes admitted that he would pay child support for these children pursuant to Minutes of Settlement, dated May9, 2009. [ 40] Mrs. Janes denies that Mr. Janes was unaware of the paternity of Aeris.

In fact, she deposes in her affidavit that Mr. Janes was never of the belief that the vasectomy had failed, wascompletely aware of the fact that she was pregnant, and that the biological father of the child was not going to play any role in the child’s life. [ 41] Mrs. Janes also deposes that Mr. Janes in fact had discussions with Aeris’ biological father during the pregnancy and that he wanted his name added to the birth certificate. [ 42] Mrs. Janes is seeking retroactive child support based on the fact that Mr.

Janes’ income has substantially increased since 2009, and that he has basically been underpaying his childsupport. [ 43] She is opposing the amendment to the petition for divorce, and maintains that Aeris is a child of the marriage, and on that basis “all issues as to whether or not our daughter is achild of the marriage can best be answered in Nova Scotia”. [ 44] She deposes that Aeris has never lived in New Brunswick and that the family members, teachers and others who can comment about Aeris’ relationship with her father and paternalrelatives are all located in Nova Scotia. [ 45] She wants this matter transferred to the Province of Nova Scotia on that basis.

ON THE ISSUE OF WHETHER OR NOT MRS. JANES SHOULD HAVE FILED A NOTICE OF MOTION [ 46] It is clear, at least in the Province of New Brunswick, that a person who seeks relief must plead the statutory provisions upon which they are seeking that relief. [ 47] In Waugh v. C.B.C., (2000) (NB CA), 224 N.B.R. (2d) 391 (C.A.), Drapeau, J. A. (as he then was), on the issue of non-compliance with Rule 37.03(

b) stated asfollows:11 Non-compliance by the respondents with the Rules of Court, specifically Rule 37.03(b), may explain why Justice Garnett overlooked the fundamental nature of the remedy sought by the respondents, namelysummary judgment, and failed to realize that the respondents had not satisfied a condition precedent to her jurisdiction to grant such a remedy, namely the filing and service of their Statement of Defence.

While the Noticeof Motion states the precise order sought by the respondents and the grounds to be argued, including a reference to s. 13(1) of the Act, it fails to direct the court to the rule relied on as the foundation for its jurisdiction todismiss the appellants' action. 12 In Norris v. Lloyd's of London (1998), (NB CA), 205 N.B.R. (2d) 29, at para. 10, this Court underscored the need for the moving party to comply with the requirements of Rule 37.03(

b) and urgedmotion judges to insist on compliance: Lloyds' Notice of Motion does not identify which paragraph of subrule 23.01 it relies on, let alone the clause or subclause. Such a practice does not conform with the spirit nor the letter of Rule 37.03(b). A motion should,by its terms, direct the court to the specific rule, paragraph, clause or subclause relied on. If the opposing party does not insist upon this, the motion judge should. 13 More recently, Moreau-Bérubé c. Noveau-Brunswick (August 9, 1999) [reported (1999), (NB CA), 217 N.B.R. (2d) 230 (N.B. C.A.)] at p. 2, the importance of compliance with Rule 37.03 wasonce again underscored:

[TRANSLATION] [The Notice of Motion] requires the moving party to state the precise order sought, the grounds to be argued, including a reference to the relevant statutory dispositions and rules. As well, it obligates the moving party to list the documentary evidence to be used at the hearing of the motion.

Compliance with the rule that dictates the content of Notices of Motion, Rule 37.03, compels the moving party to ensure that the court has the requisite jurisdiction, to ponder the questions he wishes the court to answer, to refine his arguments and to clearly identify the result he wishes to secure. [ 48 ] In this case, Mrs.

Janes is asking the Court to make an order transferring the jurisdiction of these proceedings to the Province of Nova Scotia based on untested affidavit evidence. [ 49 ] She has not filed a Notice of Motion of her own. [ 50 ] She has not indicated the statutory provisions which would allow a court to make this order, and most importantly she has denied Mr.

Janes the opportunity to respond to her request. [ 51 ] In the ordinary course of events, when a litigant files a Notice of Motion, he or she shall state the statutory references upon which they rely, including the order sought, and supported by the sworn affidavit evidence. [ 52 ] In this case Mrs. Janes has simply inserted in a responding affidavit to a Notice of Motion, a request with no statutory references, and she has deprived Mr. Janes of the ability to respond. In other words, had Mrs. Janes filed a Notice of Motion setting out the relief requested with the supporting affidavit, Mr.

Janes would have had the opportunity to respond. [ 53 ] In my respectful opinion, Mrs. Janes’ request to transfer the jurisdiction of the Court to the Province of Nova Scotia fails. It fails for two reasons: 1. The first reason is as stated above, in that there has not been an opportunity for Mr. Janes to respond, and her attempt to insert the request for relief within a responding affidavit with no statutory references contravenes the New Brunswick Rules of Court ; 2. Even if Mrs.

Janes had filed a Notice of Motion with the appropriate statutory references and a properly filed affidavit, I would not have granted her the relief requested. [ 54 ] As Nathan is now in excess of 16 years of age, there would be no custody or access order made with respect to Nathan. [ 55 ] Mr.

Janes is not seeking an order for custody and access at this point, with respect to Aeris. [ 56 ] The Court would not be making a custody order with respect to Aeris on the amended petition. [ 57 ] On the counter-petition, and/ or amended counter-petition, should the Court employ the in loco parentis doctrine and find that Aeris is a child of marriage, the only remaining issue is child support which can easily be dealt with in New Brunswick. [ 58 ] Mrs. Janes suggests that she would have witnesses available to discuss the relationship between Mr.

Janes and Aeris. [ 59 ] Quite frankly, at this juncture that is not the point. If the Court believes Mr. Janes, that he was duped or manipulated into believing that Aeris was in fact a child of his, evidence of his relationship with her becomes irrelevant at that juncture, there quite frankly may not be an order for child support. [ 60 ] The question is a credibility question to be determined by the trier of fact. [ 61 ] On the other hand, if Mr.

Janes believed that his vasectomy had failed and he fathered Aeris, the question with respect to his legal relationship with Aeris, falls outside of whether or not he attended parent teacher meetings, whether he accepted her as his daughter, whether he took her to ball games, etc as suggested by Mrs. Janes. [ 62 ] The fact that Mr. Janes entered Minutes of Settlement and agreed to pay child support would be relevant if the Court believes Mrs. Janes, i.e. that Mr.

Janes knew that he was not the biological father at that time. [ 63 ] At that juncture, the Court would have to decide the question of his legal obligation on an ongoing basis and in fact on a retroactive basis, to pay support for Aeris. [ 64 ] If the Court does not believe Mr. Janes, and prefers the evidence of Mrs. Janes, in that Mr. Janes was aware that Aeris was born as a result of an adulterous relationship, then the Court will determine the support obligation of Mr.

Janes towards Aeris regardless of his involvement in the child’s life. [ 65 ] In other words, the evidence of collateral witnesses concerning Mr. Janes’ involvement in Aeris’ life, as suggested by Mrs. Janes, would be irrelevant to the ultimate determination of the in loco parentis doctrine. ATTORNMENT TO THE JURSIDICTION [ 66 ] I am also live to the fact that Mrs.

Janes filed pleadings in the Province of New Brunswick in response to the petition. [ 67 ] When she was served with the petition for divorce, she had a choice, in my respectful opinion, at that time. [ 68 ] Had she wished to pursue the issue, she could have requested that this matter be transferred to the Province of Nova Scotia before she filed an answer and counter-petition. [ 69 ] She could have filed a Notice of Motion with a supporting affidavit seeking an order in that regard. She did not.

[ 70] Instead she filed an answer and counter-petition in the Province of New Brunswick and now seeks to move this matter to the Province of Nova Scotia. [ 71] The doctrine of attornment is well known in the world of legal academia. [ 72] Simply put, attornment means that once a litigant files their responding documents in the Province of originating jurisdiction, without notice otherwise, they are deemed to haveaccepted the jurisdiction of that court. [ 73] By filing her documents in the Province of New Brunswick, in my respectful opinion she has accepted this jurisdiction. [ 74] Even if I were to find that there was no attornment, the question of substantial connection, that being whether or not Mr.

Janes participated in the day to day life of Aeris becomes amoot point in any event, as the primordial issue, is whether or not he was live to the paternity question during the course of the marriage when he accepted the role as father to Aeris. That is the fundamental question andwill be decided on the basis of the evidence of these two parents. AMENDMENT TO PLEADINGS [ 75] Amendments to pleadings are governed by rule 27.10 of the New Brunswick Rules of Court. [ 76] That

section reads as follows: 27.10 Amendment of Pleadings General Power of Court

(1) Unless prejudice will result which cannot be compensated for by costs or an adjournment, the court may, at any stage of an action, grant leave to amend any pleading on such terms as may be just and all such amendments shall be made which are necessary for the purpose of determining the real questions in issue. When Amendments May Be Made

(2) A party may amend his pleading (

a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action, (

b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent, or (

c) with leave of the court. Amendment at Trial

(8) Where a pleading is amended at trial, and the amendment is made on the face of the record, an order need not be taken out and the pleading as amended need not be filed or served unless ordered otherwise. [ 77] In addition to rule 27, I reference rule 2.02 which flushes out the further discretion of the Court as follows:“…All necessary amendments shall be permitted or other relief granted at any stage in the proceedings, upon proper terms, to secure the just determination of the matters in dispute between the parties. (…)”. [ 78] As indicated to counsel during the course of these proceedings, I have reviewed McLaughlin v.

Levesque, a decision of Madam Justice LaVigne, released October 17, 2008, whereshe canvassed the jurisprudence in the Province of New Brunswick on the issue of amendments to pleadings. [ 79] I wish to refer to this decision, as it offers an excellent

summary, in my respectful opinion, of the law in this area.[32] Rule 27.10 has been considered in a number of decisions. While the court has wide-ranging powers to allow amendments to the pleadings at any stage in the proceedings, and often does, without amendments thecourts have been quite reluctant to allow special damages the particulars of which have not been specifically plead.

As I read the authorities, the courts will generally permit all amendments to pleadings that are necessaryfor the purpose of determining the issues outstanding between the parties, unless prejudice is shown which cannot be compensated for by costs or adjournment. The test set out in current caselaw focuses on the prejudicecaused to the opposite party and prejudice is to be considered in terms of whether it can be compensated for by costs or an adjournment. [33] In Moore v.

State Farm Fire & Casualty Company (1982), (NB CA), 42 N.B.R. (2d) 667, Stratton J.A. states at paragraph 10: [...] While leave to amend is a discretionary right, the practice is for the court to allow adjustments to pleadings whenever it can be done without injustice to the other side and where it is necessary to determine the issuesbetween the parties.

Generally speaking, an amendment should be allowed, however negligent or careless may have been the first omission and however late the proposed amendment, if it can be done without injustice tothe other side; and there is no injustice to the other side, if it can be compensated by costs: see Stewart v. North Metropolitan Tramways Co. (1886), 16 Q.B.D. 556, 558 and Frobisher Ltd. v. Canadian Pipelines &Petroleums Ltd. et al. (1957), (SK CA), 10 D.L.R. (2d) 338 (Sask. C.A.), affirmed (1960), (SCC), 21 D.L.R. (2d) 497 (S.C.C.). [...] [34] The test set out focuses on the prejudice caused to the opposite party.

This approach continues to be reflected in more recent cases decided by our Court of Appeal, such as Juniberry Corp. v. Triathlon Leasing Inc(1995), (NB CA), 157 N.B.R. (2d) 217, Béchard v. Ouellet (1999), (NB CA), 210 N.B.R. (2d) 246, and Sewell v. ING Insurance Company of Canada, 2007 NBCA 42 ,[2007] N.B.J.

No. 219. [35] In paragraph 29 of Sewell, Chief Justice Drapeau makes reference to Juniberry "and Rule 27.10(1) which ordains the making of all amendments to pleadings that are necessary for the purpose of determining the realquestions in issue". [36] In paragraph 5 of Béchard, he states that: [...] Any amendment to pleadings must be allowed unless it would cause prejudice to the other party that cannot be adequately compensated by costs and, where warranted, by setting appropriate conditions, includingadjournment.

Even where a motion to amend raises a new issue, it must be granted unless it would result in prejudice that cannot be remedied ... [37] Most cases that counsel referred me to deal with motions to amend heard at different times before the commencement of a trial. In such a case, it is usually possible to compensate any prejudice by costs or anadjournment of the trial. In the present case, it is at the commencement of the tenth day of trial, which was the last day that evidence was to be called, that the plaintiff sought an order allowing her to amend her Statement

of Claim in order to add the disputed items. [38] A case similar to ours as far as the tardiness of the motion to amend is concerned is that of Lawson v. Poirier Estate, [1995] N.B.J. No. 70 (Q.B.), where Mr. Justice Godin refused to permit an amendment to theStatement of Defence raising a new allegation which was requested on the eighth day of trial. He noted that the amendment was requested after one central witness had testified and left the province concluding that it "...comes far too late in the proceeding to allow the plaintiff to fairly respond to it". Mr.

Justice Godin further stated at paragraph 8 of his reasons: The rules are drafted in very broad terms and give to the judge wide powers to grant leave to amend pleadings. They also emphasize the importance of construing the Rule to secure the just determination of the real mattersin dispute between the parties in the least expensive and most expeditious manner. But the court must also refuse amendments that would be improper as a circumvention of the judicial process such as to unfairlycomplicate and delay the present action and do injustice to the Defendant.

If the amendment were granted, fairness would demand that the plaintiff be allowed to recall Mr. Deconinck. Further discovery might well berequested. This would require an adjournment of at least several weeks and perhaps several months. This is not the least expensive and most expeditious manner of resolving the dispute between the parties. [39] There is also the case of Givskud v. Kavanaugh, [1994] N.B.J. No. 138 (Q.B.), where Mr. Justice Daigle refused to allow an amendment of the pleadings sought on the last day of final argument.

The case was triedover various periods in January, April, October, and November of 1993. It appears that during trial testimony in April 1993, facts were disclosed prompting several of the plaintiffs to propose amendments to theirStatement of Claim.

Justice Daigle stated at paragraph 23 of his reasons: ...I can see no reason why the plaintiffs did not bring their motion before the court shortly after the facts on which they rely were disclosed, or sometime during the summer months of 1993, or even when the trial resumedon October 25, 1993.[...] I conclude that the defendants have satisfied me that they would suffer a prejudice if the proposed amendments were allowed.

Because of the timing of the motion, neither adjournment nor award of costs can overcomesuch prejudice. [...] the defendants could not reasonably have expected in such circumstances to have to defend against claims based on such allegations and would not have had an opportunity to prepare their defence to those claims. Iconclude that the defendants would suffer a prejudice in the conduct of their defence if the new allegations were allowed to be tried. [...] [40] Finally, there is the Court of Appeal decision in White v. Atlantic Home Improvement Ltd. (1999), (NB CA), 219 N.B.R. (2d) 161.

In that case, the plaintiff moved to amend her Statement ofClaim after the close of the defendant's case so as to add an alternative allegation that a representative of the defendant had negligently pried open a glass window pane. The trial judge permitted the plaintiff to amend herpleading, declared a mistrial, awarded cost sanctions against the plaintiff, and gave directions for further discoveries and re-entry of the action for trial, [1999] N.B.J. No. 205.

In allowing the plaintiff's appeal, the Court ofAppeal of New Brunswick held that the amendment was not necessary, but also made the following comments at paragraphs 6 to 8 with respect to the circumstances in which a court should grant leave to amend pleadingsduring trial: 6 Rule 27.10(1) provides that, unless prejudice will result which cannot be compensated for by costs or an adjournment, the court may, at any stage of an action, grant leave to amend any pleadings on such terms asmay be just.

It also compels the court to allow all amendments that are necessary for the purpose of determining the real questions in issue. 7 The court's power to allow a party to amend his pleading after the close of the case, but before judgment, while undoubted, is one that should be exercised only in exceptional cases. For a discussion of the issue underthe former Rules, see E & P Holdings Limited v.

Koffler Stores Limited and Rocca Group Limited (Third Party) (1980), (NB KB), 30 N.B.R. (2d) 98 (Q.B.). 8 Bearing in mind that our system is adversarial in nature and that the aims of the Rules of Court include the least expensive and most expeditious determination of every proceeding on its merits, an amendment afterthe close of the case should not be allowed if its repercussions include a "mistrial".

As a general rule, leave to amend after the close of the case should not be granted unless the amendment (1) is necessary for a resolutionof the litigation on its merits, (2) merely incorporates in the pleading an allegation which the opposite parties had full opportunity to challenge before the close of the case, (3) does not require the presentation of anyadditional evidence pertaining to the merits, and (4) will not otherwise cause irreparable prejudice to the opposite party. [ 80] Following Justice LaVigne’s analysis, in a nutshell, an amendment to a pleading should be permitted unless there would be prejudice caused to the opposite party, which cannot becompensated for by costs or an adjournment. [ 81] There is no question that a request for leave to amend is permitted prior to the matter being set down for trial.

In this case, the pleadings are not closed, and the matter has not beenset down for trial. [ 82] This is not a case where a pleading is being amended at trial. [ 83] Based on the information I have received in support of the motion including the responding document filed by Mrs. Janes, and based on what I have stated previously in thisdecision, I am not prepared to find that should an amended petition be filed at this time Mrs. Janes would be prejudiced. The issue squarely before the Court at the time of trial is an issue between Mr. and Mrs.

Janes; whoknew what and when, and whether there was an attempt to hide the truth. [ 84] The amendment sought by Mr. Janes reflects what he discovered in May 2012, as a result of a paternity test. [ 85] Not to allow Mr. Janes the opportunity to amend his pleadings to reflect the results of the paternity testing would deny him an opportunity to place that evidence squarely before theCourt. [ 86] Mrs.

Janes will have an opportunity to file an amended answer and counter-petition to the amended petition for divorce, in due course. [ 87] This is not a case of a last minute, on the doorstep amendment to a set of pleadings. [ 88] There is no ambush here, nor will anyone be taken by surprise.[ 89] The Trial Record has not been filed yet, the matter has not been set down for trial.

Therefore, both parties will have an opportunity to prepare the evidence that they need in order tomeet the allegations. [ 90] The parties themselves are the most substantially connected to the evidence that is going to support who knew the truth concerning the paternity of Aeris. [ 91] Having taken into consideration all of the circumstances surrounding the request for an amendment, I am inclined to grant it. The petition is amended as requested [ 92] Mrs. Janes shall be allowed a period of 30 days from the date of service in which to file an amended answer and counter-petition should she wish to do so.

[ 93 ] Mr. Janes shall have 30 days from today’s date in which to file the answer to Mrs. Janes counter-petition, and a further 30 days to file an amended answer to the amended counter- petition, if he wishes to do so. [ 94 ] Once those pleadings have been exchanged, a Trial Record shall be filed seeking the appropriate court time in consultation with counsel for Mrs.

Janes, unless there is a request for discovery. [ 95 ] In that event, discovery shall take place no later than July 31, 2013, and undertakings completed no later than August 31, 2013, and a Trial Record filed no later than September 15, 2013. [ 96 ] In the event the parties are not able to agree on the appropriate amount of court time a conference call shall be arranged forthwith with this Court, and the dates shall be set. [ 97 ] Finally, both parties shall provide updated financial information including copies of their filed Income Tax Returns and Notice of Assessments for the previous three years, current income information 10 days prior to the first day of trial.

COSTS [ 98 ] Rule 59 allows the court significant discretion when making an award of costs. 59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.

(2) Nothing in this rule shall be construed so as to interfere with the authority of the court (

a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (

b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (

c) to order costs to be assessed on a solicitor and client basis, or (

d) where parties are entitled to costs from each other, to order set-off of the costs. 59.02 Costs of a Proceeding In fixing costs, the court may consider (

a) the amount claimed and the amount recovered, (

b) the apportionment of liability, (

c) the complexity of the proceeding, (

d) the importance of the issues, (

e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (

f) the manner in which the proceeding was conducted, (

g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, (

h) any step in the proceeding which was taken through over-caution, negligence or mistake, (

i) the neglect or refusal of any party to make an admission which should have been made, (

j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence, (

k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and (

l) any other matter relevant to the question of costs." [ 99 ] In this instance, I am not satisfied that this Notice of Motion was necessary, and as I said before, its timing was suspect. [ 100 ] In this case, Mrs.

Janes’ refusal to consent to the amendment to the petition was unreasonable. [ 101 ] Her attempt to request new relief within a responding affidavit, not notarized, was flawed. [ 102 ] The above has created the unnecessary expenditure of legal fees, and court time. [ 103 ] Costs do not reflect a full recovery for the time and disbursements associated with legal proceedings, however, when a litigant is successful in obtaining a court order in circumstances such as these, there should be a recognition of that success through an order for costs, in my respectful opinion. [ 104 ] Costs are ordered in the amount of $1,500.00 plus HST, to be paid within 60 days of the date of this decision.

Dated at Fredericton, this ​​​​____ day of ________, 2013.

_____________________________ Barbara L. Baird, J. C. Q. B.