Court File and Parties
Court File No.: 338/13 Date: 2015-07-17
Ontario Court of Justice
Re: Pamela Robyn Lahey (Applicant) And: Michel Gauthier (Respondent)
Before: Justice Sheilagh O'Connell
Counsel:
- Brenda K. McKnight, for the Applicant
- Michel Gauthier, Acting in Person
Heard On: May 11, 2015
Endorsement
Introduction
[1] The applicant, Pamela Lahey, has brought a motion for an order striking the respondent, Michel Gauthier's pleadings in this matter, and for an order for costs on a full recovery basis.
Background Facts
[2] The applicant is 33 years old and resides in the city of Burlington. She is employed as an interior designer and she earned $84,914.48 per annum in 2013, according to her most recently sworn financial statement, although her income increased to approximately $94,000 in 2014.
[3] The respondent is 47 years of age. He also resides in the city of Burlington. He is employed as an independent insurance broker. He has been an insurance broker for approximately 18 years. According to his most recent sworn financial statement, he earned $94,203.76 in 2014. His income consists of employment income and commissions. According to his notices of assessments filed, in 2012, the respondent earned $89,805, in 2013 the respondent earned $94,203, and in 2011 the respondent earned $88,733. In 2010, the respondent earned $195,801.00.
[4] The parties met in 2008 and began a relationship. At that time, the respondent was involved in what subsequently became a very acrimonious and highly litigious separation with his former spouse. The respondent has two children from that relationship, who are now approximately seven and nine years of age. The respondent exercises mid-week and alternating weekend access to those children. Following a lengthy trial, the mother was granted custody of the children and the children primarily reside with their mother in Guelph, Ontario.
[5] The parties have one child, namely Charles-Alexandre Philippe Gauthier, born on September 16, 2010 ("Alexandre"). The parties separated on January 26, 2013 when Alexandre was two years old. Alexandre continues to primarily reside with the applicant in her home after the separation and the parties attempted to negotiate a parenting schedule prior to the commencement of these proceedings. The parties never married.
[6] Since the separation, Alexandre has generally been in the respondent's care on alternating weekends, with mid-week access. The schedule corresponds with the schedule that the respondent has with his two other children so that all three children can spend time together.
The Applicant's Position
[7] The applicant submits that the respondent's wilful and repeated failure to obey numerous court orders made in these proceedings has caused her significant prejudice. Although the respondent has demonstrated a consistent pattern of non-compliance with court orders, he continues to seek remedies from the court, which have created significantly increased legal costs for her, delays in resolving the issues and financial hardship. Further, the delay in a final resolution of the issues between the parties is not in the child's best interests. She submits that the respondent has not provided any tenable reason or explanation for repeatedly breaching court orders including a failing to pay any court ordered child support, (except for one payment when faced with the suspension of his driver's license). It is therefore her position that the only appropriate remedy is to strike his pleadings.
The Respondent's Position
[8] The respondent submits that striking his pleadings would eliminate his input and evidence regarding the child's best interests in this matter. He states that is not just the best interests of Alexandre, the subject child in this case, but also the best interests of Alexandre's siblings, the respondent's children of his previous relationship. He states that he is the only parent who is interested in maintaining a relationship between Alexandre and his half-siblings. Removing the respondent from this case would eliminate any input into how to create an access arrangement that would ensure ongoing contact between Alexandre and his siblings.
[9] The respondent further submits that the majority of the orders that he has breached involves financial issues. He states that he is not willfully breaching these orders, but rather he is simply unable to pay the amounts ordered. He states that he is making a claim for undue hardship, and has brought a motion to change to adjust the child support, given his other child support obligations.
Procedural History
[10] The applicant commenced these proceedings in August 2013, seeking custody of Alexandre and child support after the parties encountered a number of difficulties around parenting, custody and access issues. The applicant had also received nominal child support from the respondent since separation. The parties commenced mediation with Stephen Cross but were still unable to resolve the parenting issues.
[11] The first case conference in this matter was held on January 29, 2014. At that time, the parties entered into a temporary without prejudice order, on consent, providing that the respondent shall pay child support to the applicant in the amount of $699 per month commencing February 1, 2013. The respondent further agreed to pay his proportionate share of the section 7 expenses up to and including February 1, 2014 for a total of $540.
[12] The amount of child support agreed to was less than the table amount for one child under the Child Support Guidelines. At the time the parties entered into this order for child support, the respondent was earning $94,203 per annum according to his most recent financial statement. The Table amount for one child based on that income was $834 per month. The applicant agreed to the lesser amount because the respondent was obligated to pay child support for his two other children.
[13] The parties also agreed to undergo a section 30 assessment of the issues of custody and access. The parties agreed that Stephen Cross would mediate the choice of the assessor. Through mediation, the parties agreed that Dr. Paul Ricketts would conduct the section 30 assessments in this matter. Dr. Ricketts commenced his assessment in April 2014.
[14] In May of 2014, following the case conference and pending the assessment of the custody and access issues, the applicant brought a motion seeking a temporary access or parenting schedule. Although the applicant recognized that it was unusual to request an order specifying access while the assessment was underway, the evidence indicated that it was becoming very difficult not to have at least a temporary schedule in place pending the assessment. There had been ongoing conflict and disagreements between the parties regarding the child's schedule which was contrary to the child's best interests.
[15] On May 13, 2014, following a contested motion, the court made a temporary without prejudice order that Alexandre shall be in the care of the respondent on alternate weekends from Friday at 1 PM to Monday at 9 AM, to be extended to the Monday if the weekend falls on a long weekend; one overnight each week from Tuesday at 4 PM until Wednesday at 9 AM and on alternating Thursday mornings from 9 AM to 1 PM during the weeks when the child is not with the respondent on the weekends. This schedule remained in place although the respondent has failed to abide by the schedule on a regular and consistent basis.
[16] On June 2, 2014, following a review of the offers to settle and cost submissions, I ordered that the respondent pay the applicant $3000 in legal costs for the access motion, payable within 45 days of the date of this order. The applicant was clearly the successful party on the motion before me and had served a favourable offer to settle.
[17] On July 14, 2014, Dr. Ricketts delivered his custody and access assessment report. Dr. Ricketts recommended that the applicant have sole custody of Alexandre and that the respondent have access to Alexandre on alternate weekends from Friday at 1 PM until Monday at 9 AM, with the time extended until Monday at 5 PM if the Monday is a statutory holiday; every Tuesday from 4 PM until Wednesday at 9 AM; and on alternating Wednesdays when the child is not with the father for the weekend, from 9 AM until Thursday morning at 9 AM. Dr. Ricketts also recommended that there be an equal sharing of holidays and professional development days and that the parties agree on using a parenting coordinator in the event that they are not able to resolve the parenting conflict.
[18] On July 22, 2014, following the receipt of the assessment report, the parties convened a settlement conference before me. The respondent was clearly unhappy with the assessor's recommendations and was seeking joint custody and an equal parenting schedule. The parties were not able to reach a final resolution at that time however they reached an agreement on summer holidays. The settlement conference was adjourned to September 15, 2014 for continuing discussions with the hope of a final resolution. If the parties were unable to resolve the issues by the next settlement conference, then the matter would proceed to trial.
[19] On September 15, 2014, at the return of the settlement conference, it was clear that no settlement had been reached. On that day, the respondent brought a motion to transfer these proceedings to the Superior Court of Justice and for an order for an assessment of the value of the property jointly owned by the applicant and her mother, as well as a number of other motions. The applicant opposed this motion and also sought to bring a motion for security for costs for trial, a motion for contempt, and to respond to the respondent's motion which had only been recently served. The court scheduled all motions before me for Monday, November 10, 2014. I granted the respondent leave to serve and file his motion materials in court on that day.
[20] On November 10, 2014, all motions were argued before me. I reserved my decision until November 21, 2014. On November 21, 2014, for detailed oral reasons delivered in court, I dismissed the respondent's motion for a transfer of these proceedings to the Superior Court of justice, as well as for an assessment of the value of the property jointly owned by the applicant and her mother. I further ordered among other issues that the respondent shall post security for costs in these proceedings in the amount of $40,000, payable within 45 days. I also granted the applicant temporary sole custody of the child so that she could make the appropriate decisions affecting the child's health, medical, educational, religious and extracurricular decisions and other matters, after consultation with the respondent.
[21] As the applicant was primarily the successful party on the several motions before me, I ordered that the respondent shall pay her legal fees of $1500 no later than 30 days from the date of the order.
[22] In my reasons delivered on November 21, 2014, I recognized that in cases involving custody and access, where the best interests of the child are the paramount consideration, an order for security for costs should only be granted in exceptional circumstances. I ruled that this case met the test of exceptional circumstances. There had already been a significant history by the respondent of non-payment of court orders.
[23] By this point in the proceeding, the respondent had failed to pay the costs ordered on June 2, 2014 in the amount of $3000.00, which was to be paid within 45 days of the date of that order. The respondent clearly had knowledge of the order as he had been served with a copy of the order through counsel.
[24] The respondent had also failed to pay any child support pursuant to the consent order reached on January 29, 2014. The respondent had not made one payment for child support under the January 29, 2014 order. At the time the motion for security for costs was argued, the respondent owed child support arrears in the amount of $15,376.00, in addition to $560.00 for extraordinary expenses.
[25] The respondent had consented to this order for child support. At the time of the consent order, the respondent was represented by experienced counsel. Further, the amount of child support agreed to was significantly less than the Table amount under the Child Support Guidelines, given that the respondent had support obligations for two other children. Notwithstanding that, the respondent had not made one payment of child support in the almost ten months following the order.
[26] In addition to these clear breaches of the costs and child support orders, it was not disputed that the respondent had entered into a Consumer Proposal in September 2011. The applicant was listed as a creditor under liabilities in this Proposal in the amount of $32,000. The applicant had loaned the respondent $42,000 to assist him in paying his legal fees with respect to his family litigation with his former spouse. As a result of the Consumer Proposal, the applicant would only be receiving a small fraction of what the respondent owed her, if any.
[27] Further, more significantly, the respondent's former spouse was also listed as a creditor under the respondent's Consumer Proposal for the amount of $50,000. This amount was the costs awarded against the respondent following the custody and access trial with his former spouse. Following a twelve day trial before the Honourable Justice Belleghem of the Ontario Superior Court of Justice, the respondent's former spouse was awarded sole custody of the children. A lengthy section 30 custody and access assessment had been conducted by Dr. Butkowsky in that case. Justice Belleghem's reasons for judgment were 84 pages in length. The respondent was not the successful party and he was ordered to pay $50,000 in costs to his former spouse. It is also notable that he was ordered to pay child support based on an imputed income of $123,000 per annum.
[28] The undisputed evidence before me is that the respondent had not paid any of the costs under that order and entered into the Consumer Proposal shortly after that cost award was made.
[29] It is also not disputed that following Justice Belleghem's Final Order, the respondent commenced a motion for change and contempt motion against his former spouse. As a result, the respondent's former spouse brought a motion for security for costs as the respondent was in considerable arrears of child support and had not paid any of the costs associated with the previous custody and access trial.
[30] On December 4, 2012, the Honourable Justice Snowie of the Ontario Superior Court of Justice ordered that the respondent post security for costs in the amount of $59,500 respecting both his motion for contempt and his motion to change the Final Order of Justice Belleghem. In her written reasons for granting this remedy, filed in this proceeding, Justice Snowie notes the following:
"As a result of the 2010 trial in this matter, Belleghem, J. ordered that the father pay to the mother $50,000 for her costs. These costs were not paid and likely will remain unpaid. The facts are undisputed that the father cashed out his RRSPs and then declared bankruptcy. As a result, the mother will receive no more than 11,000 of the $50,000 owed... The father is currently approximately $9500 in arrears of child support. The father states that he has no assets to pay costs with.… In my opinion the father is using this court as a new forum for him to be able to continue to control and harass the mother. He is using this court as his playground. This is an abuse of process."
[31] Given this history, and the history in the proceedings before me of the complete failure by the respondent to pay the orders for costs and child support, I considered that this was an exceptional case to make an order for security for costs as there was little or no prospect that the applicant, who was represented by experienced counsel, would recoup any of her costs at trial in the event that she was successful.
[32] I further considered the fact that the respondent's position at trial in this case was for joint custody and equal parenting time, notwithstanding the comprehensive assessment of Dr. Ricketts granting the applicant sole custody and specified access to the respondent. I note that the recommendations of Dr. Ricketts were remarkably similar to the recommendations of Dr. Butkowsky in the custody and access assessment involving in the respondent and his former spouse.
[33] As the case management judge in these proceedings since its inception, it appeared overwhelmingly obvious that the parties cannot communicate effectively and that a joint custody order was completely unworkable in the circumstances. The Court of Appeal has made it clear that joint custody is not appropriate when there is no effective history of communication or cooperation between the parties, particularly when young children are involved. At this point in the proceedings, there had been at least three interim orders governing the parenting provisions as the parties were not able to agree upon issues such as the child's day care, the child's baptism, the scheduling for the child's baptism, and extra-curricular activities. In my view, there was little prospect that the respondent would be successful in his claim for joint custody at trial. It was also my impression at this point in the proceedings that much of the conflict and protracted nature of the proceedings was due to the respondent's conduct.
[34] For all of the above reasons, I concluded that in these exceptional circumstances a motion for security for costs was appropriate and so granted.
[35] I therefore made the following order on November 21, 2014:
a. The respondent shall post security for costs in these proceedings in the amount of $40,000 within 45 days of the date of the order;
b. pending the respondent's posting of security for costs, the respondent is restrained from proceeding to trial and taking any further steps regarding his counter application and motion to change except to participate in the settlement conference and or to appeal this order;
c. the applicant shall have temporary sole custody of Alexandre;
d. the respondent shall pay the applicant's legal fees of $1500 within 30 days of the date of this order;
[36] The court learned that shortly after my ruling on November 21, 2014, dismissing the respondent's motion to transfer proceedings to the Superior Court of Justice, the respondent commenced an action in the Superior Court against the applicant. The respondent has claimed a constructive trust interest in the property jointly owned by the applicant and her mother in Burlington, and where the applicant resides with the child. He has also asked for one-half of his rental costs from the applicant for his previous residence in Oakville. A trial management conference before the Honourable Justice Skarica was held in this matter on April 29, 2015.
The Law and Governing Principles
[37] This 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.
[38] The 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.
[39] Subrule 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.
[40] Simply 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.).
[41] In 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."
[42] In 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."
[43] Where 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.
[44] Further, 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.
[45] The 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.
[46] Where 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. Courts have also given a party the opportunity to restore the pleading if arrears of support are paid. See Stein v. Stein, [2003] O.J. No. 2288 (Ont. C.A.).
[47] As I made an order that the respondent shall post security for costs in these proceedings, I must also consider subrule 24 (15) and (16) of the Rules which deals with the effect of an order for security for costs and the failure to give security, pursuant to the order. These subrules provide that:
"24 (15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise. O. Reg. 114/99, r. 24 (15).
24 (16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party's case or striking out the party's answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14."
Application of the Law and Governing Principles to the Facts of this Case
[48] In my view case, after careful consideration, this is an exceptional case which warrants the striking of the respondent's pleadings on all of the issues except access. There is no other appropriate remedy. I first consider the evidence regarding the respondent's conduct and history of compliance in these proceedings.
Failure to Obey Orders
1. Order on consent dated January 29, 2014
[49] As indicated, the respondent failed to make any child support payments under this order, despite the fact that it was made on consent with counsel and it was lower than his legal obligation under the Child Support Guidelines. As a result of the respondent's failure to pay any child support or section 7 expenses pursuant to the order, the Family Responsibility Office issued a 'first notice' warning to the respondent that his driver's license was at risk of being suspended. The respondent then brought a motion for a refraining order on October 30, 2014. The Honourable Justice V. Starr granted the refraining order with payment terms. Justice Starr ordered that the respondent pay the ongoing child support of $699 per month and a further $134 per month towards arrears, commencing December 1, 2014 for a total of $833 per month, which is actually the table amount under the Guidelines, based on the respondent's stated annual income of $94,200.
[50] Despite this order, the respondent continued to fail to pay any child support or arrears after December 1, 2014. As a result, the Family Responsibility Office issued a final notice to the respondent that he had until March 9, 2015 to pay the child support and arrears or his driver's license would be suspended. On March 4, 2015, it is not disputed that respondent paid $2499 to the applicant in a lump sum payment, thereby ensuring that his license would not be suspended. However, the respondent then failed to make any further payments after that.
[51] On April 28, 2015, the Family Responsibility Office commenced a default proceeding against the respondent. According to the Statement of Arrears filed, as of April 20, 2015, the child support arrears owing were $16,934.
2. Order dated June 2, 2014
[52] The respondent has failed to pay the costs ordered in the amount of $3000 under this order, which were due and payable within 45 days of the date of the order. The order bears interest at 3% per annum of any payment or payments of which there is a default.
3. Order dated November 21, 2014
[53] The respondent has failed to post security for costs in the amount of $40,000 under this order, which was due and payable within 45 days of the date of this order.
[54] The respondent also failed to pay the legal costs ordered of $1500 under this order, due and payable within 30 days of the date of the order.
4. May 13, 2014 Order for access and November 21, 2014 Order regarding Christmas access
[55] Within one week of the May 13, 2014 Order for access, the respondent failed to abide by its terms. On November 21, 2014, I found the respondent in contempt of the access order, and specifically for willfully refusing to abide by it on July 28, 2014. I determined that the respondent had purged his contempt but ordered that the applicant was free to renew contempt proceedings and seek the appropriate fine or remedy in the event that the respondent disobeyed a court order again. The respondent also failed to abide by the Christmas access schedule which clearly specified that the respondent return the child to the applicant's home by 10:30 AM on New Year's Day. The respondent insisted on following a previous court order and returned the child a number of hours later.
5. Order dated November 21, 2014 granting the applicant Temporary Custody
[56] Further, despite the fact that the applicant was granted temporary sole custody of Alexandre on the November 21, 2014, the evidence is undisputed and admitted by the respondent that he continues to make unilateral decisions for the child without the applicant's consent including for example, enrolling the child in extracurricular activities such as lacrosse. He further has attempted to schedule Alexandre's baptism and to insist on when and where the baptism should occur. The respondent appears to refuse to acknowledge that the applicant has temporary sole custody in these proceedings.
Analysis
[57] The respondent's failure to pay any child support pursuant to the consent order of January 29, 2014 was willful and deliberate. The respondent consented to a court order to pay less than the table amount of child support. He agreed that his income at the time that he consented to this order while represented by experienced counsel, was $94,203 per annum, based on his 2013 notice of assessment. He provided no financial disclosure to corroborate this amount which is significantly lower than the income of $123,000 per annum imputed to him by Justice Belleghem in previous proceedings. He had the ability to pay the amount and he chose not to for more than ten months, depriving his child of child support.
[58] I note that the applicant agreed to the respondent's stated income of $94,203 even though the majority of that income, according to the respondent's sworn financial statement, is comprised of commission and bonuses as an independent insurance broker. Although not court ordered, the respondent has provided no financial disclosure with respect to the commissions and bonuses that he earns as an independent broker.
[59] If the respondent was acting in good faith and attempting to comply with his obligation to pay child support, then he would at least have paid some amount of child support under the court order, and at a minimum, the amount he proposed. In his proposed motion to change, the respondent sought that child support should be reduced to $345 per month, based on his "inability to pay a higher amount and due hardship". As Justice Ellen Murray observes at paragraph 28 of her recent decision, Abdirizak v. Said, 2015 ONCJ 306, "The respondent's failure to pay a penny of support speaks volumes about his disregard for orders of this court."
[60] Similarly, the respondent's refusal to pay any amount of the costs ordered under the June 2 and November 21 court orders, even minimal amounts, if he was in fact experiencing hardship, demonstrates that the respondent is simply not taking this court proceeding or his obligation to abide by court orders seriously.
[61] Finally, the respondent's failure to abide by the temporary custody and access orders in these proceedings have also demonstrated a wilful disregard for court orders.
[62] As noted earlier, the issues of custody and access are contested in this proceeding. The father is seeking joint custody and equal or shared parenting. In King vs. Mongrain, supra, and a number of other decisions, the Court of Appeal has held that it is especially important to avoid the sanction of striking pleadings where children's interests in the issues of custody or access are involved.
[63] For the reasons noted earlier, there is very little prospect that the respondent's claim for joint custody will be successful at a trial. The court has the benefit of Dr. Ricketts' section 30 custody and access assessment. The assessment completed by Dr. Ricketts was child-focused, thorough and comprehensive. He did not recommend joint custody or a shared parenting plan, nor did he find any evidence that the applicant was undermining the child's relationship with the respondent.
[64] Based on all of the evidence that has been filed to date, which has been voluminous, and the custody and access assessment, an order for joint custody would not be in the child's best interests given the undisputed conflict between the parties and the lengthy history of ineffective communication since the parties' separation. Further, as the case management judge since the commencement of these proceedings, there has been no evidence before me that this lengthy history of conflict has been caused by the applicant. Indeed, the conflict has been largely generated by the respondent's post-separation conduct.
[65] There is also no evidence that the respondent's access to Alexandre is being obstructed or denied by the applicant. The applicant has stated and acknowledged that despite the differences between the parties, the respondent is, in many respects, an excellent father and that he has a good and loving relationship with the child. The applicant has demonstrated throughout these proceedings that she recognizes the importance and value of Alexandre's relationship with his father and with his half-siblings.
[66] In my view, the child's best interests, which includes the maintenance of his relationship with his half siblings, would not be minimized or ignored by the applicant in an uncontested hearing. However, out of an abundance of caution, keeping in mind the very clear direction from the Court of Appeal that it is preferable to avoid striking pleadings that relate to the custody and access of children, I have determined that a just and appropriate remedy is to strike the respondent's pleadings with the exception of his claim for access.
[67] In making this determination, I considered the fact that I had already granted an order for security for costs against the respondent in this matter for the reasons detailed earlier, thereby effectively stopping the respondent from proceeding to trial until he posted the security ordered. It has been almost nine months since I ordered that the respondent post security for costs. He has failed to do so. The applicant and the child deserve finality and an end to this litigation.
[68] I 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).
[69] A 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]
[70] These 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. Giving the respondent even more opportunities to comply with the court orders will just unnecessarily prolong this process with no reasonable expectation that he will comply. Despite being now self-represented, the respondent is an experienced litigator, and he has been warned about the necessity of compliance with court orders and the consequences of failing to do so.
[71] In summary, this is one of those exceptional cases where the respondent's pleadings should be struck, with the exception of his claim for access, which is permitted to proceed with strict controls. In this case, I see no other realistic alternative to striking the respondent's pleadings on a without prejudice basis to being re-instated once he has fully complied with the court orders that have been made. This will strike the necessary balance of providing a serious consequence to the respondent's ongoing lack of compliance and still permit the father to participate in proceedings in a limited way to address the issue of access.
[72] Should there be a material change in the respondent's financial circumstances at some point in the future, he is at liberty to bring a motion to change any order for child support made at an uncontested hearing.
Order
[73] For the reasons above, I make the following order:
The respondent's answer/claim is hereby struck out, subject to paragraph 2 below. The applicant is permitted to proceed with her application on an uncontested basis.
Only the respondent's claim for access only shall proceed to a focused hearing, if necessary. This focused hearing shall last no longer than one day, to be scheduled by the trial coordinator.
The order is made without prejudice to the respondent being permitted to bring a motion, on proper notice to the applicant, seeking to set aside this order on proof that he has complied with the orders for child support, costs and security for costs made in this matter.
Justice Sheilagh O'Connell
Date: July 17, 2015
[^1]: See 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.
