Simon's Legal Resources

Family - Documents - Striking

. Elkolaly v. Elsakhawy

In Elkolaly v. Elsakhawy (Div Ct, 2026) the Divisional Court allowed a family law appeal, here where "the primary issue is whether an expert opinion tendered by way of affidavit for a scheduled temporary parenting motion should have been struck out on the grounds of bias and removed from the motion record".

Here the court contrasts the striking of documents under the FCR [R1(8.2)] versus the RCP [R25.11 'Striking out a Pleading or Other Document']:

Analysis & Decision

[37] As a preliminary observation, I would note that Rule 1 (8.2) of the Family Law Rules[3] provides the authority for the court to 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 process of the court.” The equivalent rule in the Rules of Civil Procedure is Rule 25.11 which provides that the court may “strike out or expunge all or part of a pleading or other document … on the ground that the pleading or other document” “may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; or, is an abuse of the process of the court”.

[38] There is rich jurisprudence under these rules. Numerous decisions have determined that the issue of whether material should be struck from the Court record should be determined by the Court hearing the motion and should not be bifurcated. “The general and prevalent rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be determined only in the clearest cases”.[4]

[39] This case is an example of the wisdom of that manner of proceeding. In an attempt to avoid further delay of the motion, the court provided for a preliminary ruling on the admissibility of the expert affidavit, by a judge other than the judge hearing the main motion. In fact, that ruling and the subsequent appeal have postponed the hearing of the main motion. As mentioned above, now that we know the outcome, it appears it would have been far more efficient to have argued the evidentiary question in the context of the motion itself.