Court File and Parties
Ontario Court of Justice
Between:
Miriam Nool Applicant
ā And ā
Roberto Carido Respondent
Before: Justice S. O'Connell
Heard on: October 6, 2016
Endorsement dated: October 24, 2016
Counsel
F. Nkiru Agbakwa ā counsel for the applicant
No appearance by or on behalf of Roberto Carido, although served with notice of these proceedings
Kenneth Snider ā counsel for the child on behalf of the Office of the Children's Lawyer
Endorsement
[1] The Motion
1The applicant mother brought a 14B motion seeking an order striking the respondent father's pleadings for non-compliance with court orders and in particular seeking the following relief:
an order terminating the respondent father's access to the child or in the alternative an order that access to the child shall be at the sole discretion of the applicant mother subject to the child's wishes and preferences;
an order that the respondent pay child support for the child in the amount of $100 per month based on an imputed income of $16,000;
an order vacating the upcoming court date of October 5, 2016.
2The 14B motion originally came to me in chambers on October 3, 2016, but given the substantive and serious nature of the relief sought, I adjourned the 14B motion to an oral hearing before me on October 5, 2016, which was the original return date of the case conference in this case.
3The respondent father was served with notice of the mother's motion and with notice of the return date for the case conference. He did not respond to the mother's motion nor did he attend the hearing on October 5, 2016. No explanation for the father's absence was provided.
Background
4The child who is the subject of this proceeding is Robbie Nool, born January 17, 2005 ("Robbie"). Robbie is eleven years old. This case started in January of 2015 when the mother brought an application for custody and support. The case management judge was the Honourable Justice Katarynych until her retirement. I became the case management judge in February of 2016.
5On August 10, 2015, Justice Katarynych granted the mother final custody of Robbie. This order was unopposed by the father, who failed to attend court on that day and a number of previous occasions. On the same date, Justice Katarynych made a temporary order granting the father access every Wednesday from 5:30 PM to 7:30 PM and on alternate Sundays from 11 AM to 7 PM, which confirmed a previous consent order between the parties made in February of 2015.
6It is apparent from Justice Katarynych's endorsements during her case management that the father's participation in the court proceedings was sporadic and his access to Robbie was inconsistent. The father did attend court on December 11, 2015 and in her endorsement on that day, Justice Katarynych stated the following:
"the father is here today after a long absence from the conferencing table. He is needed for good problem solving and has been encouraged to keep coming to court.."
7In the same endorsement, Justice Katarynych commented that the father's "perplexing presentation" suggested that "the father is not always able to keep himself in good emotional and mental health." The court also raised concerns that the father's mental health issues were affecting his ability to exercise access appropriately.
8At the time of the December 11, 2015 hearing before Justice Katarynych, the father was receiving social assistance (Ontario Works) and he had applied for Ontario Disability Support Program benefits (ODSP) regarding an undisclosed disability. Justice Katarynych made an order for disclosure requiring the father to produce the documentations in support of his ODSP application and to keep the mother and child's counsel advised of his efforts to earn income and the status of his social assistance eligibility.
9Following Justice Katarynych's retirement, the matter was then adjourned to February 18, 2016 before me for a continuing case conference.
10At the case conference on February 18, 2016, the father did attend court and he participated. However, the court was concerned about the father's presentation in court, which raised some concerns about his mental health. The mother also expressed some concerns regarding the father's behavior as well as the impact of his missed access visits on the child.
11The father advised the court on that day that his ODSP application had been rejected and that he was seeking to appeal that ruling to the Social Benefits Tribunal. A hearing had been scheduled for that review on July 5, 2016. The father continued to be in receipt of Ontario Works. The matter was adjourned to April 5, 2016 for a continuing case conference to obtain further disclosure of the father's financial situation and to monitor the father's access to the child.
12At the return of the case conference on April 5, 2016, the father did not attend court. An "all building page" was conducted and attempts were made to reach the father. There was no explanation for his lack of appearance on that day. The court learned from both mother and Mr. Snider, counsel for the child, that the father had not exercised any access to Robbie since February 20, 2016. Mr. Snider described an incident that occurred on that date that had been disturbing for the child and the mother. According to the Affidavit filed by the mother, during an access visit, the father attended uninvited at her work place with the child and started taking photographs of her workplace. He refused to leave the workplace. This was all done in the presence of the child during his access visit. The child and the mother were upset. The mother was later terminated from her employment as a result of the father's conduct.
13Based on his meetings with the child and further investigation, Mr. Snider, counsel for the child, expressed concerns about the father's mental health and ongoing unsupervised access. I also expressed concerns about the father's mental health and directed that until the father attended court and provided an explanation for his conduct, any further access be supervised (on a without prejudice basis) to ensure the child's safety as well as an ongoing relationship with the father. A copy of my endorsement was delivered to the father at his last known address. The case conference was then adjourned to July 19, 2016 to monitor the father's access and the ongoing disclosure issues.
14On July 19, 2016, at the return of the case conference, the father once again did not attend court. An all building page was conducted at 11:20 AM. This was the third court appearance, including both appearances before me and Justice Katarynych that the father failed to attend.
15Further, the father still had not exercised any access to the child since February 20, 2016, according to both the mother and child's counsel. According to the Affidavit filed by the mother, the last contact between the child and the father was during a telephone conversation in June 2016. The telephone conversation was very upsetting to the child. The father indicated to the child that he no longer wished to see the child and blamed the child for the missed access visits. Counsel for the child confirmed these events and was now recommending that there be no access between the child and the father at this time. He confirmed that the child was very upset by what had transpired.
16Given the father's refusal to participate in the court proceedings, his refusal to comply with the access order or the order for financial disclosure, and his lack of participation in these proceedings, the court directed the mother to bring a motion to strike the father's pleadings for the next court date which was adjourned to October 5, 2016.
17The father was served with notice of the mother's motion to strike to the father's pleadings. He was also provided with a copy of my endorsement setting the hearing for October 5, 2016.
18The matter returned to court on October 5, 2016. Again the father was not present. All building pages were conducted. At that hearing, the court learned that the father continued to have no access to the child. He has not attended court since February 18, 2016.
The Law
19This proceeding is governed by the Family Law Rules, O. Reg. 114/99 ("the Rules"). Subrule 1(8) of the provides that if a person fails to obey an order in a case, then the court may make any order it considers necessary for a just determination of the matter, including:
a) an order for costs;
b) an order dismissing the claim;
c) an order striking out any pleading (including documents on motion to change), financial statement or any other document filed by a party;
d) an order that all or part of a document the court ordered produced, and was not, may not be used in the case;
e) if the breach is by a party, that the party is not entitled to any further order in the case, unless the court orders otherwise;
f) an order postponing the trial;
g) on motion, a contempt order. O. Reg. 322/13, s. 1.
20The wording of subrule 1(8) is also sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case and where there has been a wilful failure to follow the Rules or obey an order in the case. See: Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.); Wreggbo v. Vinton, 2013 ONCJ 250.
21Subrule 1(8.4) of the Rules provides that if an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order);
The party is not entitled to participate in the case in any way;
The court may deal with the case in the party's absence;
A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.
22Simply put, a party whose pleadings have been struck is no longer able to participate in the case. Caldwell v. Caldwell, [2006] O.J. No. 1469 (Ont. C.A.).
23In a number of decisions, the Ontario Court of Appeal has made it clear that the power to strike out a party's pleadings should be used sparingly and only in exceptional cases. See Roberts v. Roberts, 2015 ONCA 450. In Chiaramonte v. Chiaramonte, 2013 ONCA 641, the Court held that in family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice, following the court's decision in Purcaru v. Purcaru, 2010 ONCA 92, at paragraph 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, supra, at paragraph 49 of that decision:
"The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court."
24In Chiaramonte v. Chiaramonte, supra, the Court of Appeal went on to say as follows at paragraph 32 of that decision:
"Striking a party's pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way. For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v. Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way."
25Where custody and access interests are involved, the court should avoid the sanction or use utmost caution in striking pleadings because trial court needs participation of both parties and information that each can provide about best interests. A full evidentiary record, including the participation of both parties, is generally required to make a custody decision in the best interests of the children. See King v. Mongrain, 2009 ONCA 486, cited with approval in D.D. v. H.D., [2015] O.J. No. 2959 (Ont. C.A.), and Haunert-Faga v. Faga.
26Further, in Kovachis v. Kovachis, 2013 ONCA 663, the court held that on a motion to strike a party's pleadings in the family law case because of non-compliance with court orders, the court must consider whether the default is willful and whether striking the pleadings is the only appropriate remedy.
27The Court of Appeal has also stated that in exercising the discretion to strike pleadings, a court has the jurisdiction to order the reinstatement of pleadings on conditions. In Costabile v. Costabile, 2005 CarswellOnt 6909 (Ont. C.A.), the court upheld the lower court's decision to strike the appellant's pleadings as the judge contemplated that the appellant would have the right to move to set aside the default and to try to persuade a family court judge that his disclosure and efforts in providing disclosure justified reinstating his pleading. The Court of Appeal opined that this was "a sensible resolution of the matter" and given the broad discretion under the Family Law Rules, the Court also held that a family court judge had jurisdiction to make such an order.
28Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman. Further, before striking a pleading for failure to pay support, the court must consider a payor's financial circumstances and his or her ability to pay support. See Higgins v. Higgins; Stein v. Stein, [2003] O.J. No. 2288 (O.C.A.).
29I have also considered my duty as a case management judge to manage this case in a manner that is just, which includes ensuring that the process is fair and proportionate to the nature of the dispute and the interests involved. In doing so, I am guided by Rule 2 of the Family Law Rules which states:
(2) Primary objective. The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2(2).
(3) Dealing with cases justly. Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2(3).
(4) Duty to promote primary objective. The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2(4).
(5) Duty to manage cases. The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2(5).
30A considerable body of case law has developed in determining how Rule 2 should be applied to the conduct of a hearing. It is well established that the court has the power to determine the form and duration of the hearing and whether an oral hearing is even necessary.[1]
Application of the Law to the Facts of this Case
31It is not disputed that the father has not exercised access to Robbie (who is now 11 years old) since February 20, 2016, a period of more than eight months at this point. The last contact of any kind that the father had with Robbie was the very upsetting telephone conversation in June 2016 in which the father told Robbie that he did not want to see him anymore.
32Further, contrary to the Orders of Justice Katarynych and my Order, the father failed to provide any further financial disclosure regarding the status of his ODSP application and the outcome of the Social Benefits Tribunal hearing in which he appealed the decision rejecting his application for ODSP. It is not disputed by the mother that the father's current source of income is Ontario Works. The father is currently living with his own father, the child's paternal grandfather.
33Finally, the respondent father has failed to attend court since February of this year. He has failed to attend three consecutive court appearances, despite being well aware of these proceedings. He is no longer engaged in the court process and he has wilfully ignored it. This is no longer an adversarial process as the father has failed to participate meaningfully, if at all, for several months.
34These proceedings have been ongoing for almost two years. It is in the child's best interests, as well as the parties' interest, to achieve finality and to limit the protracted, costly and unnecessary litigation in this case.
35Accordingly, for all of the reasons above, this is an appropriate case to strike the father's pleadings and to permit the mother to proceed on an unopposed basis against the father.
36The mother initially sought to terminate the father's access to the child, but now is agreeable to an order that access to the child shall be at the sole discretion of the mother, subject to the child's views and preferences. Counsel for the child supports this position. The mother has appropriately protected the child throughout these proceedings and has been child focused. A final order that leaves access at the mother's discretion and subject to the child's views and preferences will not be abused by the mother or used as a tool to obstruct the father's access should he choose to exercise access at some point in the future.
37I am not prepared to make an order for child support at this time. There is very little if no evidence that the father's income is more than the Ontario Works that he is receiving or that he is capable of maintaining employment. A single person with no dependents receiving Ontario Works earns well below the Table amount to pay child support under the Child Support Guidelines.
38I recognise that the father has a legal obligation to make all reasonable efforts to secure employment and to pay child support. I further note that he has failed to abide by previous orders for financial disclosure. However, it is not disputed that the father is receiving social assistance, putting him well below the poverty line and that he appears to be suffering from some mental health issues at this time, affecting his ability to work.
39I will therefore make no order for child support at this time, however this order is without prejudice to the mother to renew her claim for child support should she have better evidence that the father is working, or capable of working, or receiving an income greater than his current income.
Final Order
40Accordingly, I make the following final order:
The Respondent father's pleadings are struck and the Applicant mother may proceed with her application on an unopposed basis against the Respondent father.
The Final Order of Justice Katarynych, dated August 10, 2015, granting the Applicant mother custody of the child, Robbie Nool, born January 17, 2005, shall continue in full force and effect.
The Respondent father's access to the child named above shall be at the sole discretion of the Applicant mother, subject to the child's wishes and preferences.
There shall be no child support payable at this time given that the Respondent father is in receipt of Ontario Works. However, this is without prejudice to the Applicant mother to renew her claim for child support should she have better evidence that the father is working, or receiving an income greater than his current income, or that the Respondent father is capable of working.
41I thank counsel for their helpful submissions and presentation on this motion.
Released: October 24, 2016
Signed: "Justice Sheilagh O'Connell"
Footnotes
1See Bandas v. Demidarche, 2013 ONCJ 679, Dawson-Fisher v. Fisher, 2011 ONCJ 489, Herrera v. Raji, 2011 ONCJ 398, Askalan v. Taleb, 2012 ONSC 4746, J.F. v. V.C., and in general, in addressing the principle of proportionality, see the Supreme Court of Canada's notable decision in Hryniak v. Mauldin, 2014 SCC 7.