ONTARIO COURT OF JUSTICE DATE: 2021 02 01 COURT FILE No.: Toronto D72028/14

BETWEEN:

Oseye-Patricia Charmain Cohen (a.k.a. Dalechuku) Applicant (Mother)

— and —

Prince Dalechuku Respondent (Father)

Before Justice Robert J. Spence

Motion heard November 25, 2020 and January 26, 2021

Reasons for Decision released February 1, 2021

Ms. Theodora Oprea..................................................................... counsel for the applicant Mr. Aristotle Lebedev (on November 25, 2020 only)....... counsel for the respondent

R. J. SPENCE J.:

Introduction

[1] The applicant mother seeks an order striking out the respondent father’s amended motion to change (Motion) this court’s final order dated October 5, 2016 or, in the alternative, an order staying that Motion.

[2] The mother’s argument is that the father has failed to pay outstanding costs orders and his Motion is plainly devoid of merit and, accordingly, the court should not permit the Motion to proceed further.

[3] The mother commenced her argument on November 25, 2020. However, the court decided to defer consideration of the mother’s argument pending the production of certain documents by the father (which I will detail later in these reasons).

[4] On November 26, 2020, the court ordered the father to produce the documents by January 12, 2021 and adjourned the continuation of the argument to January 26, 2021.

Background

The Amended Motion to Change

[5] On October 5, 2016 this court made a final order (final order) on the consent of both parties. When the parties entered into their consent, they were both represented by counsel.

[6] The relevant portions of that order provided for:

(1) Sole custody of three children, then ages 17 years, 7 years and 1 year, to the mother;

(2) Incidents of custody to the mother, including obtaining and renewing government-related documents and travel outside Canada, all without the father’s consent;

(3) Child support payable by the father to the mother for the three children in the amount of $483 per month based on the father’s income, imputed to him in the amount of $23,400;

(4) No access between the father and the children; and

(5) A restraining order prohibiting the father from contacting or communicating with the mother and the children, or coming within 500 metres of any place they may be known to be, at any time, for any purpose. That restraining order was to remain in effect until such time as the court ordered it to be terminated or changed.

[7] Prior to issuing his amended Motion, the father had issued and served his unamended motion to change. That unamended motion to change came before me for a scheduled case conference on September 17, 2020. At that case conference, the father sought permission from the court to amend his motion to change so that he could request an order terminating or varying the restraining order. Terminating or varying the restraining order would have been necessary if the court was otherwise inclined to grant his request for access to the children.

[8] The court granted the father’s request, ordering the father to pay costs thrown away to the mother in the amount of $1,000, in respect of the original pleadings. The court ordered the costs to be paid by November 9, 2020.

[9] In the court’s same endorsement, the court cautioned the father that if he failed to pay the costs, the court might be inclined to dismiss his Motion as, on the face of that Motion, it appeared that his claim had little merit.

[10] The father did subsequently issue his amended Motion on October 7, 2020. In that Motion he sought [1] :

(1) Termination or alternatively, variation of the restraining order;

(2) Supervised access to two of the children, now aged 11 years and 5 years; [2] and

(3) The appointment of the Office of the Children’s Lawyer to conduct an access assessment and make recommendations to the court.

[11] The father’s stated grounds for the Motion are set out verbatim, as follows:

(1) The children were younger when the no access provisions of the Order were made. The passage of time, and my deep faith in God, has healed me spiritually. The parental conflict that took place then is over and has not re-surfaced since then.

(2) It is in the children’s best interest to know their father and to know that I love them dearly.

(3) I volunteer as a pastor and counsellor with my church and have gained a profound sense of the importance of family. My children will benefit from the insights I have gained during the course of my life.

(4) The children’s views regarding access with me can only properly before [sic] the court through an assessment by the Office of the Children’s Lawyer, which I make on this variation Motion.

(5) [in support of the father’s request to vary or terminate the restraining order]: I am a changed man from the time the Restraining Order was created. I have paid my debt to society for the crime I was convicted of. I have completed my probation and counselling (PARS course) and other counselling. I have gained insight into the behaviours that caused me to act harmfully to the Applicant and will never do so again. I do not bear anyone any malice ill-will and no longer present a threat to anyone.

Events following the issuance of the Amended Motion to Change

[12] The father did not pay the costs in the ordered amount of $1,000, or any portion of those costs.

[13] The mother brought her motion to strike or to stay returnable on the next scheduled court date of November 25, 2020.

[14] In that motion she sought the order which is the subject of these reasons.

[15] The father filed a responding affidavit on November 23, 2020. In that affidavit, he stated in part:

(1) I understand that costs in the amount of $1,000 were awarded to the applicant because I need to prepare and file amended pleadings.

(2) I do not have $1,000.

(3) I am genuinely impecunious. I am a poor man, in poor health, I cannot work as a result of my health condition. In addition to my poor health, I am precluded from working as a result of my immigration status. Attached to my affidavit is a copy of a diagnosis of blot clots, shortness of breath and high blood pressure from my doctor. [The court sets out below the entirety of the doctor’s letter dated January 29, 2020]:

This 51-year-old gentleman was born in Nigeria. He came to Canada in 2008. In June 2019, his platelets were 118. His creatinine was 102 with an EGFR of 74. His hepatitis B and C serology were negative. In October 2018, his platelets were 136. He says he has known his platelets have been low since 2014. He is not anemic. He has no history of connective tissue disorder. There is no history of other malignancies or any disseminated intravascular coagulation. He does not drink alcohol. He has no history of HIV. More recently however he has been diagnosed with a DVT in October 2019 when he was hospitalized for a prolonged period of time with shortness of breath and syncope. I am unaware of the details of that hospitalization. He says that he has not used his Xarelto for 5 weeks. He still feels short of breath. Sometimes he feels dizzy. There are still further appointments that are needed for his medical condition.

[16] The doctor’s letter does not diagnose blot clots or high blood pressure. Furthermore, much of the contents of the doctor’s letter are based on self-reporting.

[17] The doctor’s letter was approximately 10 months old at the time of the mother’s motion to strike. The father did not provide any updated medical letters, despite the doctor’s statement that “further appointments are needed”.

[18] I heard the mother’s argument on November 25, 2020 and I did not render a decision on that date. I adjourned the matter to January 26, 2021.

[19] On the following day, November 26 th , I sent an endorsement to the parties, requiring the father to serve the mother, and file with the court, further documents before considering the outcome of the mother’s motion, specifically:

(1) The father’s complete Canada Border Services Agency (CBSA) file including all correspondence between the Agency and the father, in respect of the father’s immigration status and his pending removal from Canada, and

(2) The transcript of the father’s criminal court sentencing on June 3, 2016 on which date the father days he had been convicted of three counts of assault with a weapon, for which he was sentenced to a period of incarceration for four months, together with probation for three years. The victims of those assaults were the mother and the children. [3]

[20] On January 12, 2021, the father swore an affidavit to which he attached a one-page “Order for Release” respecting his immigration matter. The father deposed that he has no other CBSA documents and the only document the CBSA has on file is this Order.

[21] He did not provide the criminal court sentencing transcript which the court ordered be disclosed because he claimed to be “impecunious and do not have any funds with which to order a transcript.

[22] The parties returned to court on January 26, 2021 and argued the mother’s motion, now with the addition of the father’s January 12 th affidavit. The court reserved its decision.

Position of the Parties

[23] The mother argues that the father should not be permitted to continue with his Motion for two reasons.

[24] First, she argues that the father’s failure to pay the costs ordered by the court should act as a bar to continuing with litigation because, regardless of the outcome, he would simply refuse to pay any further costs orders which this court might make. Any costs ordered by the court would likely be unenforceable. The father’s claim to be impecunious effectively would give him carte blanche to litigate this matter, without any financial consequences should he lose and be required to pay costs.

[25] Second, the mother argues that the father’s motion is devoid of merit on its face. He has not shown that there has been a material change in circumstances which affects or is likely to affect the best interests of the children, being the threshold issue for any change to the final order, pursuant to section 29 of the Children’s Law Reform Act (CLRA).

[26] The father’s argument was somewhat disorganized. [4] However, I believe in fairness to the father, his arguments are (or should be): I am impecunious, I have not seen my children in a long time, I am a changed person, and I should not be barred from proceeding with my Motion because of a lack of financial resources. And because of all this, it is in the best interests of the children that I be given the opportunity to commence supervised visits with the children.

Legal Framework

[27] Subrule 1(8) of the Family Law Rules (Rules) provides [my emphasis]:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that 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. O. Reg. 322/13, s. 1.

[28] On a plain reading of this subrule, the court has the authority to exercise its discretion by granting the mother’s requested relief, if that relief is “necessary for a just determination of the matter”.

[29] In the case of D.D. v. H.D., 2015 ONCA 409, the court of appeal had the following to say at paragraph 1:

[1] It is trite law that custody is to be decided based only on the best interests of the children. In King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267 , this court emphasized that the utmost caution must be used before striking a party’s pleading when custody and access are in issue. It explained that a full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children.

[30] This court accepts that statement by the court of appeal as the starting point for the consideration of mother’s motion.

[31] In the case of Pearce v. Kisoon, 2019 ONSC 4389, Broad, J., acknowledged the foregoing statement in D.D. , but then stated at paragraph 19 [my emphasis]:

[19] The issue in the case at bar is whether the principle in King v. Mongrain and confirmed in D. (D.) v. D. (H.) , applies in the context of a motion to change a final order in which custody was finally determined and where the relief sought on the motion of the non-defaulting party is a stay of the defaulting party’s motion to change and not to strike out that party’s pleadings .

[32] While acknowledging that there is little functional difference between striking out pleadings and ordering a stay, Broad, J. noted that King v. Mongrain, 2009 ONCA 486 did not involve a motion to change a final order. Rather, it was about determining parenting issues at first instance.

[33] The courts’ reluctance to strike pleadings or to stay proceedings against a defaulting party comes from the understandable need to make decisions in the best interests of children. And the determination of best interests generally requires the participation of both parties so that there is a complete record before the court.

[34] Returning to Pearce, supra , Broad, J. stated at paragraph 27 [my emphasis]:

[27] Different considerations apply, in my view however, where it is the party in default who seeks to change a final order in which the best interests of the child respecting custody and access have already been determined. The admonition against striking pleadings (or staying proceedings) may not carry the same force where it is the defaulting party who seeks to invoke the jurisdiction of the court to vary an existing final order respecting custody and access and the non-defaulting party simply seeks to have the final order upheld. Subrules 2(2) and (3) of the Family Law Rules directs Courts to deal with cases justly, including to ensure that the procedure is fair to all parties.

The Decision

[35] For the reasons which follow, I have concluded that the just result is to order a stay of the father’s Motion to change.

Factual Analysis

Non-compliance with court orders

[36] There are several significant facts in this case which support the mother’s position that the father’s Motion should be stayed for non-compliance with court orders:

(1) The final order was made on consent of the father who, as I noted earlier, was represented by counsel. It is important to remember that the father consented to a no-access order. The logical inference from this consent is that the father realized his criminal behaviour toward the mother and the children required such an order in the best interests of the children.

(2) In order to gain a better understanding of the facts leading to the criminal convictions, this court specifically ordered the father to obtain the transcript of the sentencing hearing. The father claimed to be unable to order the transcript because of his alleged impecuniosity. He provided no meaningful evidence of impecuniosity. Even if he was not employed, he provided no evidence of any source of income, including social assistance or ODSP (disability payments).

(3) Moreover, the father’s claimed impecuniosity is belied by the fact that the father’s Motion did not seek a termination of his child support obligation which was part of the final court order. It would make little sense for the father to seek changes to the final order respecting access without, at the same time, seeking to reduce or rescind entirely his support obligation if he were truly impecunious.

(4) The father claims to be unable to work for health reasons. His evidence, referred to earlier, does not support that contention.

(5) The father has not paid any child support since June 2018 and is currently in arrears of his child support obligations in the amount of $20,901. [5]

(6) The father claims there is no CBSA file and, instead, he provided the court with one sheet of paper only. He has provided no evidence of having contacted the CBSA to make a request for the court-ordered file. The father’s assertion that this is the only piece of paper which exists, is not credible given his own acknowledgment that there is a long-standing ongoing immigration matter and that he is apparently criminally inadmissible, likely because of his criminal convictions for the assaults against the mother and the children.

(7) In addition to these breaches of court orders, the father also failed to pay the $1,000 costs order, or any part of that order.

The Father’s Motion is devoid of Merit

[37] There are several significant facts in this case which support the mother’s position that the father’s Motion should be struck or stayed because the Motion is devoid of merit:

[38] Despite his statement, referred to earlier, that: “I have gained insight into the behaviours that caused me to act harmfully to the Applicant and will never do so again”, the father stated something very different to the court in his Case Conference Brief (Brief) which he filed with the court on April 30, 2020. [6]

[39] The father attached to his Brief a three-page “Statement of Fact” (Statement) which belies his assertion about having gained insight into his criminal behaviour. I extract certain portions from that Statement, verbatim:

The applicant [mother] has misled all the courts with false information and misrepresentations, threats and coercion.

Applicant made sure the Respondent was arrested and detained by the 42 nd Divisional Police whom she had misled with huge false informations [sic]. Respondent was released on bail the following day only to be rearrested within another two weeks when the Applicant had finished brainwashing their children to allege further charges that the Respondent physically assaulted the children too by beating them. . . . [the Applicant] still wants to alienate the respondent from their children, a pattern of her usual tactics with her previous partner. . .

Out of fear from all the threats the Respondent pled guilty to all the allegations.

As at this day, the Applicant is refusing to produce the whereabouts of the Applicant’s biological daughter [Pr.] whom she forced to lie against her father in court in 2016.

From all threats from the Applicant, Respondent became afraid that this Applicant may have killed or harmed the Respondent’s biological daughter, whom she trickishly fought to obtain full custody of her for the purpose of depriving her of her biological father and destroying the relationship.

[40] The father’s three-page Statement reveals how the father truly feels about the mother and about his criminal convictions.

[41] The father’s words reveal that he blames the mother for what happened. He portrays himself entirely as a victim of the mother’s behaviour. He accepts no responsibility for his own criminal conduct.

[42] The father’s claims to have gained insight into his past behaviour and his claim to be a changed man are insincere. The father’s own words make this perfectly clear.

[43] As the court noted earlier, section 29 of the CLRA permits the court to change a final custody or access order if there is a “material change in circumstances that affects or is likely to affect the best interests of the child”.

[44] The material change which the father relies upon in his Motion is that the criminal conduct which he engaged in, his assaultive behaviour towards both the mother and the children, reflects the person he used to be. He is now no longer that person. He has truly gained insight and is remorseful for how he behaved.

[45] It turns out, however, that none of these claimed changes are true.

[46] There can be no better evidence of the father’s lack of change, than the father’s own words, as expressed in his Brief which he prepared and signed just 9 months ago.

[47] The fact that the father paid his “debt to society” and completed his PARS program cannot in and of itself form the basis for a material change in circumstances.

[48] I find that the following comments by Justice Stanley Sherr in F.D.M. v. K.O.W., 2015 ONCJ 47, at paragraphs 51 and 52 , are applicable to the case before me [Justice Sherr’s emphasis except as noted in the last sentence]:

[51] The court finds that the father has established some changes in circumstances. He is no longer facing criminal charges. He completed an Anger Management Program. . . .

[52] However, the court finds that these changes do not constitute a material change in circumstances that affect the best interests of the children. The risk concerns for the mother and the children in this case are profound. The findings of fact by Justice Waldman established that the children were exposed to a severe degree of physical and emotional abuse by the father. They were exposed, at times, to bizarre and angry behaviour by him. . . . Yet the father continues to claim that all of her evidence was fabricated [my emphasis] . . . .

[49] At paragraph 26 of F.D.M., Justice Sherr noted [my emphasis]:

[26] The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the motion is to be dismissed . The change must have altered the child’s needs or the ability of the parent to meet those needs. The last order is presumed to be correct. See: Wiegers v. Gray, 2008 SKCA 7, 2008 CarswellSask 10 (C.A.) .

[50] On the father’s own material he has failed to raise a prima facie case to meet his onus of proof. Returning to F.D.M. , Justice Sherr had the following to say at paragraphs 34 and 35 [my emphasis]:

[34] There is not an automatic entitlement to a trial on a motion to change . In I. v. W., 2011 ONSC 2021, Justice George Czutrin upheld on appeal a decision by Justice Geraldine Waldman to dismiss a motion to change without a trial and quoted paragraph 31 of her reasons for decision where she wrote:

[31] I am satisfied, having reviewed the evidence, that a trial of the issue of father’s access to the child is not required. There is no issue of credibility that needs to be resolved through viva voce evidence. The court does not require examination and cross-examination to allow for a full exploring of the evidence and issues before the court . . . .

[35] After reviewing the evidence filed, and hearing the submissions of the parties, the court finds that it is unnecessary to require examination and cross-examination of the parties to fully appreciate the evidence and issues before it. . . . If the court finds that the father has met the first part of the test, the case will continue with an exploration of the best interests of the children. If not, the motion to change will be dismissed .

[51] The court concludes that that father has failed to meet the threshold requirement of a material change in circumstances and, accordingly, his Motion is devoid of merit.

Conclusion

[52] The court recognizes that striking pleadings or ordering a stay of proceedings is an uncommon remedy for a person who has disobeyed court orders, when the issue is about what is in the best interests of a child.

[53] However, as the case law notes, there are circumstances where such an order is appropriate.

[54] The father has disobeyed not just one court order (costs), but multiple court orders (production of court-ordered documents). He has also ignored for the past two and one-half years his child support obligations which he consented to in the final order. The mother has had to support the children entirely on her own, without any financial assistance from the father.

[55] The court rejects the father’s portrayal of himself as an impecunious victim of circumstances.

[56] In the court’s view, the father’s multiple breaches of court orders are exacerbated by the lack of merit in his Motion.

[57] The court considered whether to order an outright dismissal of the father’s Motion given the evidence, combined with the father’s own words which make it clear that there has been no material change, as contemplated by s. 29 of the CLRA .

[58] However, the mother’s motion argued on November 25, 2020 and January 26, 2021 sought either a stay of the Motion or a striking out of the father’s Motion pleadings. [7]

[59] While, on the facts of this case, there may be little practical difference between staying the Motion and dismissing it entirely, in fairness to the father the court will not go beyond the specific relief sought by the mother.

[60] The court orders a stay of the father’s Motion to Change. The court may consider the father’s request to reinstate his Motion, having regard to any relevant circumstances, including whether:

• the father has fully satisfied any outstanding costs orders, including the costs order which the court now makes;

• the father has obtained and filed with the court the documents which the court ordered in its endorsement dated November 26, 2020; and

• the father is able to file meaningful evidence of a material change in circumstances as contemplated by s. 29 of the CLRA.

[61] The father’s request to lift the stay may be made by 14B motion form, accompanied by a supporting affidavit, with all relevant documents attached and which addresses the foregoing, in addition to any other considerations which the father asks the court to rely on in exercising its discretion in the father’s favour. That 14B shall be filed with the court, without notice to the mother. The court will decide whether the father has satisfied the minimum requirements necessary to then put the mother on notice.

[62] Subrule 24(1) of the Rules provides that the successful party in a motion is presumed to be entitled to costs of the motion. Generally, following a decision on a contested motion, I would grant leave for the parties to file written costs submissions. However, in this case, I have concluded that it would be unfair to impose an additional financial burden on the mother by requiring her to make further submissions. I have sufficient information that enables me to decide costs in favour of the mother without any further court filings.

[63] I am making a summary costs award in the amount of $2,000. The court considers this award to be reasonable and proportionate to partially indemnify the applicant for the costs she has incurred to date in the father’s Motion, including the mother’s within motion. The total costs which this court is currently aware of now amounts to $3,000, payable by the father to the mother. [8]

[64] Order to go accordingly.

Released: February 1, 2021 Justice Robert J. Spence (signed electronically)

[1] Apart from the amendment in his Motion pertaining to the restraining order, the grounds for the father’s requests in the amended Motion were little changed from the original, unamended motion.

[2] These two children are children of the marriage between the parties. The other children are from the mother’s prior relationship. One of those two other children was not the subject of the custody order made on October 5, 2016.

[3] It was unclear how many of the children were the victims of the father’s assaults, the exact nature of those assaults and how those assaults impacted both the mother and the children. All these considerations were – and remain – relevant to the court’s consideration of what had occurred and whether there had been a material change in circumstances since those events took place.

[4] He had previously been represented by counsel on November 25, 2020, but on the return of the matter on January 26, 2021, the father was self-represented.

[5] As at January 1, 2021, according to the Statement of Arrears prepared by the Family Responsibility Office

[6] That case conference had been scheduled for June 1, 2020. However, following the onset of the Covid-19 pandemic and the closure of the courts, the case was necessarily adjourned to a later date.

[7] Although in the mother’s response to the father’s Motion, she does argue that there has been no material change in circumstances.

[8] There may be additional outstanding costs orders which are presently unknown to the court.