Court File and Parties
Date: September 4, 2020
Court File No.: D20773/18
Ontario Court of Justice
Between:
Kamesha McIntyre Applicant
Clifton Leung, for the Applicant
- and -
Rhondell Garcia Respondent
Lillian Ezeogu, for the Respondent
Heard: September 1, 2020
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The applicant (the mother) has brought a motion to strike the respondent's (the father's) amended Answer/Claim due to his breach of multiple court orders to pay child support for the parties' two children (the children), provide disclosure and pay two costs orders made against him.
[2] The father asks that the mother's motion be dismissed.
[3] The court read affidavits filed by the parties and heard submissions of counsel for the parties.
[4] The motion was heard by teleconference. The father did not attend on the call.
Part Two – Brief Background
[5] The children are 15 and 14 years old. They both reside with the mother.
[6] The mother's application seeks custody of the children and child support retroactive to January 1, 2015.
[7] On November 30, 2018, the mother sought to find the father in default. The court granted the father an extension of time to file his Answer/Claim and ordered him to pay temporary child support of $708 per month. The court also ordered the father to pay $160 costs to the mother.
[8] The father subsequently filed an Answer/Claim. He has not paid any of the costs ordered on November 30, 2018.
[9] On January 9, 2019, on consent, the temporary child support payable by the father, was changed to $436 each month, starting on December 1, 2018. The matter was also referred to the Office of the Children's Lawyer. A report was subsequently prepared by the Office of the Children's Lawyer, dated July 26, 2019, pursuant to section 112 of the Courts of Justice Act.
[10] On August 26, 2019, the parties consented to an order that the father provide disclosure to the mother, including his bank statements from December 2015 until August 2019, and medical disclosure, as the father stated that he was not working.
[11] On September 3, 2019, the court heard a contested motion about where the younger child would live. The mother was the successful party.
[12] On October 3, 2019, the court ordered the father to pay the mother $3,000 for the costs of the motion. The court permitted the father to pay the costs at the rate of $150 each month with the provision that if he was more than 30 days late in making any payment, the full amount of costs then owing would become immediately due and payable. See: McIntyre v. Garcia, 2019 ONCJ 706.
[13] The father has not paid anything towards this costs order.
[14] On December 4, 2019, on consent, the court changed the temporary parenting schedule for the younger child and made another financial disclosure order.
[15] On January 15, 2020 the father filed an amended Answer/Claim.
[16] The mother's motion to strike the father's amended Answer/Claim was first returnable on March 9, 2020. The motion was adjourned on consent at the request of the father.
[17] The motion was subsequently adjourned due to the COVID-19 pandemic restrictions on court operations.
[18] The mother advised the court that the father has not paid any child support to her pursuant to the court orders of November 30, 2018 and January 9, 2019. The father, through his counsel, did not dispute this.
Part Three – Legal Considerations
[19] Subrule 1(8) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) sets out that if a person fails to obey an order in a case, 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 a claim;
c) An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party;
d) An order that all or part of a document that was required to be provided but was not, may not be used in the case;
e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court, unless the court orders otherwise;
f) An order postponing the trial or any other step in the case; and
g) On motion, a contempt order.
[20] In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice. See: Purcaru v. Purcaru, 2010 ONCA 92, at para. 47.
[21] Where children's interests are involved, courts should use utmost caution in striking pleadings because trial court needs participation of both parties and information that each can provide about best interests. See: King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, (C.A.); Haunert-Faga v. Faga.
[22] The decision-making framework for addressing a breach of a financial disclosure order was set out in paragraphs 44 to 49 of Mullin v. Sherlock, 2018 ONCA 1063 as follows:
Decision-Making Framework
[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.
[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:
the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
the extensiveness of existing disclosure;
the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
any other relevant factors.
[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.
[47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.
[48] If the judge decides to strike, Rule 1(8)(c) does not refer to striking "pleadings". Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.
[49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are "entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue."
[23] In Roberts v. Roberts, 2015 ONCA 450, the court upheld a decision to strike a party's pleadings due to financial non-disclosure. The court stated that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled.
[24] Justice Robert Spence set out the following three-step process when determining whether to strike a pleading for a breach of an order (not just a financial disclosure order) in paragraph 64 of Ferguson v. Charlton, 2008 ONCJ 1:
[64] ... First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order "in the case or a related case" [subrule 1(8)] or an order "made on motion" [subrule 14(23)].
Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court's decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).
[25] It would be superfluous to order that a party comply with an existing order. To order compliance does not add to or take away from the initial order. If there has been a breach, the appropriate step is to seek a remedy under subrule 1(8). See: Varcoe v. Varcoe, 2014 ONSC 328.
[26] In Costabile v. Costabile, the Ontario Court of Appeal found that a motions court's decision to strike pleadings with the right to move to reinstate the pleadings on conditions was a sensible solution.
[27] In exercising its discretion under subrule 1(8), the court should consider the primary purpose of the rules, as set out in rule 2– to deal with cases justly.
Part Four – Analysis
[28] It is not disputed that the father has breached several court orders.
[29] The father has not paid anything towards the two costs orders – one small order for $160, the second one for $3,000. This last order was made 11 months ago.
[30] The father has breached the child support orders by failing to pay any child support to the mother.
[31] The mother deposed that the father advised her that he would never pay her a penny towards the costs orders. The father did not deny this.
[32] The father has only minimally complied with the two disclosure orders. Many bank records ordered remain outstanding. He provided inadequate medical evidence. He has not provided an updated financial statement or any evidence of his current income. When asked if the father was working, his counsel candidly advised the court that she did not know. Only a scant job search list was provided by the father and it is out of date.
[33] The court is satisfied that there has been deliberate non-compliance with several orders by the father.
[34] The next step is to determine whether it is appropriate for the court to exercise its discretion under subrule 1(8) to strike the father's amended Answer/Claim.
[35] The father's failure to comply with the two disclosure orders is concerning. It makes it more difficult for the mother and the court to assess the issues of retroactive support and ongoing support.
[36] If this was the father's only breach of orders, the court would have been disinclined to strike his amended Answer/Claim. The court recognizes that it needs to exercise great caution before exercising this remedy – particularly when there are parenting issues before the court. The financial issue is not complex. The better route would be to proceed to trial on the support issue and draw an adverse inference against the father due to his non-compliance with the disclosure orders. Costs could also be ordered.
[37] But – this is not the only breach of orders by the father. He has not complied at all with the two costs orders and the child support orders.
[38] Even with this non-compliance, if the father had provided a reasonable excuse for his breaches of these orders, the court would have not struck his amended Answer/Claim.
[39] The father provided some evidence that he lost a job in 2019 and was on Employment Insurance for a while. However, he failed to provide any evidence of his employment situation or his ability to pay child support or the costs orders since March 2020.
[40] The court took into account the father's unemployment when it permitted him on October 3, 2019 to pay the $3,000 costs order at the rate of $150 each month.
[41] The mother filed the four months of bank account statements that the father produced to her from September to December 2019. Those statements showed over $14,000 of expenses, including expenses of several hundred dollars for on-line gambling and on-line purchases. The father was provided with this evidence in March 2020 and did not deny or explain them.
[42] It is apparent that the father had a stream of income to maintain these expenses. He chose not to explain the source of this income. He also chose to incur these expenses instead of paying any child support or costs.
[43] The mother also submitted that the father does not pay any rent and that he has had the ability to pay child support and costs. The court agrees.
[44] The court draws an adverse inference against the father for his failure to provide any updated financial disclosure and for failing to attend on this motion to explain his breach of multiple orders.
[45] The father has not brought a motion to change the temporary child support order.
[46] What stands out about the father's conduct is that this motion was originally returnable on March 9, 2020. He knew that he had to justify his failure to pay any child support or costs and his failure to provide the outstanding disclosure. Yet, despite the lengthy delay in hearing this motion, the father made no effort to remedy any of his breaches.
[47] The evidence is clear that the father is being openly defiant of the court orders.
[48] The parties' older child will turn 16 years old this fall. The children are well settled with the mother. The report of the Office of the Children's Lawyer supports their placement with the mother. The court heard a contested motion about the younger child's primary residence and determined that it was in his best interests to live with the mother. The mother has always facilitated generous parenting time for the father and does not propose to change this. Parenting time and decision-making should no longer be a contentious issue. In these circumstances, striking the father's amended Answer/Claim would not have the same prejudicial effect on him that it would have on most parents involved in parenting disputes.
[49] It would be unjust and contrary to the administration of justice to permit the father to continue to defy orders, while requiring the mother to further litigate this matter.
[50] The father's failure to pay the two costs orders informs the court that just ordering further costs against him will not correct his behaviour.
[51] It is time for the father to demonstrate to the court that he will respect court orders and is serious about proceeding with this case in good faith. He will be given the opportunity to do so as it always the court's preference to have both parents participate.
[52] The court will follow the approach taken in Costabile, supra. It will strike the father's amended Answer/Claim but will give him the opportunity to reinstate it upon the performance of conditions.
[53] The court will require the father to pay the mother the sum of $3,000 by money order or certified cheque within 45 days. This will be applied to his child support arrears. The father should know that this is a very conservative amount (and probably far lower than he should be required to pay) as the court wants to be very careful about not creating an unreasonable economic barrier for him to litigate these matters. If the father is really sincere in his desire to proceed with this case, he will pay this amount.
[54] The father shall also be required to serve on the mother and file within 45 days the following:
a) A sworn updated financial statement, with complete copies of his 2019 income tax return and notice of assessment attached.
b) Documentary proof of all income he has received in 2020, including pay stubs.
c) The name, address and telephone number of any employer he has worked for in 2020.
d) Copies of all bank account entries since January 1, 2020.
[55] The previously ordered disclosure must still be provided to the mother, but only the disclosure set out in paragraph 54 above is required for the father to restore his amended Answer/Claim.
[56] If the father complies with these conditions within 45 days, he may file a Form 14B motion, on notice to the mother, to restore his amended Answer/Claim.
[57] Pursuant to subrule 1(8.4), the court may set a date for an uncontested trial of this matter once it has struck the father's amended Answer/Claim. It also has the discretion to determine to what extent the father may participate in this case.
[58] If the father complies with the conditions and restores his amended Answer/Claim, the return date will be for a case conference. If not, the return date will be to schedule an uncontested trial and to hear submissions about how the father may participate at that trial, if at all.
Part Five – Conclusion
[59] An order shall go on the following terms:
a) The father's amended Answer/Claim is struck pursuant to subrule 1(8).
b) The father may move to restore his amended Answer/Claim by Form 14B on notice to the mother, if he does the following within 45 days:
He pays her $3,000 by certified cheque or money order. This will be applied to child support arrears.
He provides her with the following financial disclosure:
a) A sworn updated financial statement, with complete copies of his 2019 income tax return and notice of assessment attached.
b) Documentary proof of all income received in 2020, including all pay stubs.
c) The name, address and telephone number of any employer he has worked for in 2020.
d) Copies of all bank account entries since January 1, 2020.
[60] If the mother seeks her costs, she shall serve and file her written costs submissions by September 14, 2020. The father will then have until September 24, 2020 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.
[61] The return date will be on November 9, 2020 at 11:45 a.m. and be heard by teleconference. The court will provide the dial-in numbers to the parties.
[62] The court thanks counsel for their professional presentation of this motion.
Released: September 4, 2020
Justice S.B. Sherr