Court File and Parties
COURT FILE NO.: FS-17-21433 DATE: 20180705 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Micheline Manabat, Applicant AND: Paul Joseph Smith, Respondent
BEFORE: Kiteley J.
COUNSEL: Daniel Dominitz, for the Applicant Self-represented Respondent
HEARD: June 28, 2018
Endorsement
Background
1The parties cohabited in Toronto from March to August 2016 and from August 2016 to March 3, 2017 in British Columbia. They have a daughter born October 27, 2016. Events occurred in early March 2017 that caused the Applicant to leave British Columbia and return to Ontario.
2The application was issued on March 16, 2017 and in an ex parte order dated March 16, 2017, Perkins J. ordered that the child’s primary residence would be with the Applicant and he made a restraining order against the respondent. Those orders expired on March 30, 2017 unless renewed by further order of the court. Costs were reserved.
3In a consent order dated March 30, 2017, Perkins J. extended both of those orders and adjourned the motions to April 27, 2017. Costs were reserved. The consent indicates that Mr. Smith was still living in British Columbia and had a lawyer in Toronto representing him on the motion.
4On April 24, 2017, Stevenson J. held a case conference in which she identified a threshold issue as to whether Ontario had jurisdiction. Each party had a lawyer. Stevenson J. noted that the Respondent was asking for a stay of the Ontario proceedings and that the matter be heard in B.C. She reserved costs of the case conference to the judge determining the jurisdiction issue.
5On April 26, 2017 Paisley J. made a consent order that the child’s primary residence continued to be with the Applicant, that the custody/access issues would be determined in Ontario; that the Respondent’s Notice of Motion dated April 21, 2017 would be dismissed without costs; that the March 30 temporary restraining order would continue until further order or agreement; and that each party would pay their own costs of the motion. Both parties were represented.
6As a result of the events in early March, 2017, the Respondent was charged with several criminal offences. On June 29, 2017, the Respondent signed a Recognizance After Allegation in which he acknowledged having been charged on or about March 9, 2017 with a count that he did cause fear of injury/damage by another person contrary to section 810(1)(a) of the Criminal Code. The Recognizance included five conditions, commenced on June 29, 2017 and remained in effect for one year.
7On July 11, 2017 Paisley J. dealt with motions by each party. The Applicant asked for an order for interim custody; an order permitting the Respondent supervised access; an order for interim support and arrears of support and an order permitting payment out of trust of the net proceeds of sale of a condominium in Ontario that the parties owned jointly. The Respondent asked for an order extending the time for filing his Answer and financial statement; an order for sole or joint custody; in the alternative granting him supervised access and equal disbursement of the proceeds of sale of the condominium. Each party was represented by counsel.
8Paisley J. noted that the Respondent had not had access to the child since the separation.
9Paisley J. ordered that the Respondent’s motion for interim sole or joint custody was premature; that the Applicant would continue to have temporary custody; that Brayden would provide supervision for the Respondent’s access beginning with at least one supervised visit per week for a two hour period; that, on consent, the proceeds of sale of the jointly owned Toronto condominium would be split equally; that the Respondent had 10 days to file his Answer and financial statement. Justice Paisley noted that the father stated that he had moved from British Columbia and that he was unemployed and that he was unable to order child support on the basis of his past employment. He made an order for “standard income disclosure” and attached to the order the standard income disclosure required by the rules in support cases which specifies compliance is required in 10 days. Paisley J. also referred the parties to mediation and directed that there should be a variation of the Recognizance to allow the Respondent to participate as anticipated by the terms of the Recognizance. He made an order that costs were in the cause.
10In a separate endorsement that same day, he specified that the Respondent was required to pay the costs of Brayden supervision.
11On July 12, 2017, Paisley J. made an order incorporating a consent that directed the lawyer holding the trust funds from the sale of the Toronto condominium to pay to the Applicant approximately $56,000; pay to the Respondent approximately $46,000; that the Respondent’s CRA debt of approximately $12,500 would be subtracted from his share; that the Applicant waived her claim to ongoing child support for the month of August 2017; that within 10 days, the parties would execute a full and final mutual release to any property claims. Both parties were represented by counsel. The order is silent on costs.
12On September 12, 2017 Moore J. dealt with the motion brought by the Respondent. At the request of the Applicant and in order to facilitate a case conference, he adjourned it to a long motion to be heard on January 19 to be heard along with the long motion that the Applicant intended to bring. He specified that it be adjourned to a date following the case conference scheduled for October 20, 2017. He made an order for no costs. On consent, he made an order for continuing supervised access that the Respondent continued to pay for. On consent, the order of Moore J. also directed the Respondent to “forthwith” comply with the Disclosure order dated July 11, 2017 and the Respondent was required to “forthwith” serve and file an updated Financial Statement and disclose the contents of any employment contract, once finalized, within 7 days of same, which contract is anticipated to be finalized by the end of September, 2017.” The Applicant was represented. The Respondent did not have a lawyer.
13As a result of the case conference, on October 20, 2017, Kruzick J. made a consent order continuing supervised parenting time and required the Respondent to pay the costs provided that the maternal grandmother could assist in the transitions instead of Brayden. The consent order required the Respondent to provide within 30 days: (a) “complete bank and credit card statements, from the date of separation (March 2017), to the present and on an ongoing basis, including but not limited to” the 5 specified accounts; (b) particulars and supporting documentation with respect to the sale or purchase of personal and business assets including the boat, the Porsche, business assets such as laser machines and any other real and/or personal property; and (c) tracing by accounting including supporting documentation of the approximate $46000 he received from the net proceeds of sale. The consent order also required the Respondent to provide the Applicant with employment updates and information related to his efforts to obtain employment, once per month, on the last day of each month. Kruzick J. directed that the parties attend a settlement conference on January 10, 2018. The order is silent on costs.
14On January 10, 2018 Kristjanson J. made an endorsement in which she indicated it was a “productive” settlement conference and she made an order incorporating the terms of the consent. That temporary order provided that on an interim, temporary and without prejudice basis commencing February 1, 2018, the Respondent would pay table child support in the amount of $470 per month on an imputed income of $51,000; that no later than February 13, 2018 he would pay retroactive child support in the amount of $2,350 for the period September 2017 to January 31, 2018; that, no later than January 15, 2018, he would provide disclosure as ordered by Kruzick J. on October 20, 2107; that the Respondent “shall not threaten the Applicant/Mother with bringing Motions before the Court and shall canvass dates with the Applicant’s counsel, seeking dates within 30 days, and schedule a litigation timetable before bringing motions to the Court”; that prior to bringing a motion, the parties would attempt mediation; that the parties would communicate through Our Family Wizard; that the Respondent was entitled to obtain information relating to the child’s health and education and that the Applicant was required to advise the Respondent of any medical-related information relating to the child. Importantly, this consent order provided for unsupervised access three times a week commencing 4 days later with the grandparents facilitating access when the Applicant was not available.
15In that consent order it was noted that the Respondent was looking for a job and once he got it, the day and time provisions might be adjusted and if travel for work was required, he would give 2 weeks notice and the parties would co-operate on make-up access. The Respondent agreed not to leave the child alone in the presence of the dog. The consent order contained the usual clause providing for a Support Deduction Order. That order was issued on April 16, 2018 and entered on April 27, 2018.
16In her endorsement Kristjanson J. ordered a continuation of the settlement conference in May and that the purpose would be to discuss how access was going and the Respondent’s employment. The Applicant was represented. Kristjanson J. noted that, although the Respondent was unrepresented, he did consult a lawyer by telephone before signing the consent. Her endorsement was silent on costs.
17The Respondent brought a motion for a variety of orders including increased access time and a “prospective order asking for more access time in March, 2018 because he expect(ed) to be travelling in March for work”. In his endorsement dated February 15, 2018 Hood J. noted that the Applicant asserted that she had not been properly served although the Respondent argued that the Applicant was evading service. She asked for an adjournment until after mediation and after the settlement conference on April 16. Hood J. adjourned his motion until after the settlement conference on terms. The Respondent had argued that he was prevented from attending mediation because of the restraining order and Recognizance and that the Applicant was agreeable to lifting both for the purposes of mediation although she took the position it was unnecessary given the July 11, 2017 order. Hood J. made an order varying the March 30, 2017 order to allow for mediation and an order varying the June 29, 2017 Recognizance for the same purpose. The Respondent also asked Hood J. for an order that the restraining order and Recognizance be lifted in their entirety so as to allow him to travel to the U.S. for work. Since that was not in the notice of motion, Hood J. refused to consider it. On consent, Hood J. made an order allowing the parties to communicate by email but on terms. Hood J. noted that “the parties are reminded that they entered into a consent order on January 10, 2018 and that they are to comply with it”.
18Hood J. noted that both parties were self-represented and he directed them to file Notices of Change of Representation. He also ordered that all orders, including the July 11 order, be signed and entered. His endorsement indicated that there were no costs of the attendance.
19In an endorsement dated February 22, 2018, Hood J. noted that the parties had been before him on February 15 and he had adjourned the Respondent’s motion to a date after the settlement conference but the Respondent had returned seeking access. He noted that the parties were continuing in mediation and the Respondent asserted that they had reached an agreement to a revised access schedule but the Applicant disagreed. Hood J. declined to make any order but indicated he would if they reached an agreement. His endorsement indicated no costs of that attendance.
20Later that day Hood J. made another endorsement indicating that the parties had reached an agreement in mediation as to a temporary parenting schedule which was to be reviewed and discussed at the settlement conference on April 16, 2018. He made a temporary order in accordance with the consent that the parties had reached that expanded the Respondent’s daytime access and ordered that the new schedule would continue until May 1, 2018 providing that the parenting schedule would be reviewed at the April 16 settlement conference and any further expansion would take effect as of May 1, 2018. The temporary consent order also provided that the Applicant could travel with the child within Canada during her 6 consecutive parenting days. And that she would provide notice to the Respondent by email in advance of such travel. Neither party had counsel.
21In an endorsement dated April 16, 2018, Kristjanson J. indicated that there had been a lengthy settlement conference. She made an interim without prejudice consent order that provided for the Respondent to have the child according to a 2 week schedule that included overnights and she changed the transition locations. She varied the access schedule because the Respondent would not see the child May 7 through 13 because he would be out of town for work and he was not entitled to make-up time. Kristjanson J. also made an order requiring the Respondent to provide within 30 days the shareholder’s agreement and all financial information regarding his “new job/shareholder in company” together with bill of sales for all large assets post-separation or evidence of money collected; and he was ordered on consent to produce his 2017 income tax return when filed and his 2017 notice of assessment when received and quarterly production of deposits reflecting business income. She vacated the restraining order dated March 16, 2017. Pursuant to the consent, Kristjanson J. also ordered the Applicant to issue and enter the January 10 order and advise the Respondent when that was done and then the Respondent was ordered to pay the arrears through FRO. She also made an order that the Respondent was prohibited from bringing any motion until after the next settlement conference on June 11. Kristjanson J. noted that as of April 30, the Respondent would be living at a specified address and that he was required to advise the Applicant 30 days in advance if he moved his Toronto residence. Neither party had counsel on April 16. The order is silent on costs.
22In an endorsement dated May 22 Kristjanson J. directed the parties to attend Mediate 393 to deal with the issue of implementing the access order. Later that day she made an endorsement that the April 16 consent order could be varied on consent with respect to date/time/location of pick-up/drop off and that such variation would not constitute a breach of the order or any peace bond if done on consent. Her endorsement included the following:
On June 11, parties to discuss getting to trial, including: (a) Disclosure orders, (b) Questioning, (c) Amending application, (d) Access transfers.
23That endorsement is silent on costs.
24Kristjanson J. directed the Respondent to take out the April 16 order and the May 22 order.
25In her endorsement dated June 11, 2018, Kristjanson J. indicated as follows:
I am very concerned with Mr. Smith’s failure to comply with the existing court orders re disclosure, from Justice Paisley’s July 11, 2017 order with Standard disclosure terms; and my 2 orders. I gave the parties a copy of Manchanda v. Thethi, 2016 ONCA 909, on financial disclosure.
- Ms. Manabat has leave to bring a motion to strike Mr. Smith’s reply for failure to provide financial disclosure.
- Mr. Smith now says he has a new job; he is ordered to produce all documents relating to this new job by June 20 and to produce pay stubs thereafter.
- Mr. Smith states he does not have Bills of Sale for assets; as previously directed, production of all bank account or other financial statements tracing the deposits and related money to be provided as part of the financial disclosure.
- Updated financial statements for both parties required for the motions.
- Leave to Ms. Manabat to bring a motion to enforce payment of arrears.
- Leave to Mr. Smith to bring a VERY limited access motion ONLY for the purpose of summer holiday schedule, 2018, as he wishes to travel to BC with his daughter; also to address out of Canada consent to travel permission; and amendments to the Answer re child support and custody.
- Existing interim, without prejudice access schedule varied on consent, effective June 13, such that pick ups will be at High Park subway station at 4 pm, week 1 Monday and Friday and week 2, Wednesday. Drop offs at warden subway station Wednesday 1 pm week 1, Monday 1 pm week 1 and week 2, Friday at 1 p.m. until June 29 th when the peace bond expires, after which it will be to each other’s residence; Side by Side to be arranged until further notice and at the revised locations.
This matter must proceed to trial. The matter could not proceed as a settlement conference today because financial disclosure and failure of Mr. Smith to file an updated Financial Statement.
Motion booked for 2 hours on June 28, 2018.
This matter must proceed to trial as soon as possible. After financial disclosure is complete, parties must complete questioning, if any, by no later than August 31, ½ day each; parties to book joint settlement conference/trial management conference in September 2018. Goal to proceed to trial by year end in light of high conflict, M’s young age, the need for certainty, and to avoid endless motions and case conferences.
On consent, para. 7 of April 16, 2018 consent order is varied to allow M to be left up to 8 hours and to provide Ms. Manabat with the home telephone number/address of the individual with whom M is left. Ms. Manabat provided her mom as contact, with (phone number not included). Emphasis added
26That endorsement is silent on costs.
Applicant’s Notice of Motion
27On June 21, 2018, the Applicant served the Respondent with her notice of motion returnable June 28 along with her affidavit sworn June 21, her financial statement form 13 sworn June 21, 2018 and her factum.
28In her notice of motion she asked for an order striking the Respondent’s Answer dated June 7, 2017, his form 35.1 affidavit sworn June 2, 2017, his financial statements sworn June 2, 2017 and September 1, 2017 and any documentation produced in relation to this motion and his cross-motion because of his breach of orders dated July 11, 2017, September 12, 2017, Kruzick J. dated October 20, 2017, January 10, April 16 and June 11, 2018. In the alternative she asked for an order that the Respondent not be entitled to bring any further motion or be entitled to any further relief until he complied with all of those orders; and an order that the Respondent be penalized in costs. In paragraph 4 the Applicant also asked for an order varying the April 16 order as to parenting times and transition arrangements. She asked for costs on a substantial indemnity basis plus HST.
29Her affidavit is 12 pages including 51 paragraphs and about 20 exhibits.
Respondent’s Notice of Motion
30On June 22, the Respondent served his notice of motion, form 14A affidavit in support of the motion (which has various dates but seems to have been signed and sworn on June 22, 2018) that consists of 60 pages and 639 paragraphs along with 31 exhibits and his form 14A affidavit apparently sworn June 22 updating the “form 13.1 financial statement sworn April 2018” and his factum.
31In his notice of motion, the Respondent asked for 23 orders.
Request by Respondent to adjourn the motion
32The motions were scheduled to start at 10:00. The Respondent advised the Registrar that he was going to see Duty Counsel. At 11:05 I attempted to start the hearing. Duty Counsel indicated that the Respondent would be asking for an adjournment. I gave Duty Counsel about 20 minutes to further consult with the Respondent so that he could be ready to make the submissions for the adjournment.
33At 11:30 Duty Counsel asked that the motions be adjourned to early August. He pointed out that the Applicant’s motion had only been served June 21 and, while within the current Family Law Rule, as of July 1, 2018 the rule would be amended to increase the time for service and she would not have complied with the new rule. He submitted that the Respondent needed time to discuss the matter with counsel and “possibly get counsel” and “then get in compliance with orders for disclosure”. Duty Counsel observed that the Respondent had consented to many of the orders and that “at the heart of the matter” is the Respondent’s income. He said that the Respondent had not been able to comply with some of the orders for example he did not have a bill of sale for the car. Lastly Duty Counsel observed that the Respondent only found out that morning that the Applicant would be represented by counsel and he felt at a disadvantage.
34After hearing submissions from counsel for the Applicant, I made an oral ruling at 11:45 that I dismissed the Respondent’s oral motion to adjourn the motions to early August. I indicated that I would provide reasons for dismissing the motion to adjourn in these reasons.
35I declined to adjourn for these reasons. The Respondent knew on June 11 that the Applicant’s important motion and his motion would be heard on June 28. The Applicant’s affidavit was only served June 21 but, insofar as the motion to strike was concerned, it contained no surprises because the Applicant had been insisting on disclosure for months and multiple endorsements had been made requiring compliance. He was well aware of the many orders that had been made, largely on consent, and which he had breached. The main reason for seeking the adjournment appeared to be that the Applicant chose to have her former counsel appear on the motion to make submissions on her behalf. That is not a reason to adjourn. With the exception of the early events when he had counsel, the many endorsements starting with September 12, 2017 indicate that he acted without counsel. That includes representing his own interests in motions which he had launched and in conferences. He is well aware of procedures required to prepare for and participate in this hearing. I am not persuaded that he was at any disadvantage nor that he suffered some prejudice because the Applicant exercised her right to be represented on this motion.
Ruling on identification of issues before the court
36Before beginning submissions I indicated to the parties that both had sought relief which Kristjanson J. had not authorized. The Applicant’s requests to strike or alternate relief were all authorized. The Applicant’s request to amend the parenting schedule contained in the consent order dated April 16, 2018 was not authorized.
37In the Respondent’s notice of motion seeking 23 requests, it appeared that only two were within the scope identified by Kristjanson J.
38It is my view that the authorizations permitted by Kristjanson J. were exclusive. She was clear in her endorsement that the matter had to proceed to trial no later than the end of this year. Typically motions are not permitted once a case is on the trial track. While she has not set a trial date, that is the immediate goal. The parties have attended personally or by counsel on at least 14 occasions involving at least 7 judges. The proliferation of motions has to stop so that the parties can focus on preparing for trial. Furthermore, Kristjanson J. indicated that the failure to achieve more success at the settlement conference was directly attributable to the Respondent’s failure to comply with orders for disclosure. It was critical to resolution of the financial aspects of the case that the Respondent’s ongoing failure to comply with disclosure orders and whether he would lose his right to participate in the case had to be the priority.
39With respect to the Applicant’s notice of motion, I ruled that I would hear submissions on the three paragraphs related to striking his answer and related documents and enforcing the temporary child support order. With respect to the Respondent’s notice of motion, I ruled that I would hear submissions with respect to two paragraphs only, namely paragraphs 5 and 23. As indicated below, I am dismissing all other requests made by both the Applicant and the Respondent.
Analysis
40In paragraph 25 of her affidavit sworn June 21, 2018 the Applicant listed four areas of non-compliance but I consider the fourth not to be relevant to the motion. The remaining three are:
(a) failure to pay retroactive child support of $2350 ordered January 10, 2018; (b) failure to pay table child support in the amount of $470 per month except for February and March and part of April, 2018. The amount outstanding was $1110 for the period April to June 2018; (c) failure to provide the majority of the disclosure set out in the orders dated October 20, 2017, January 10, 2018, April 16, 2018 and June 11, 2018.
41At paragraph 26 of her affidavit, the Applicant provided a table listing the dates and substance of the orders and the status. As that table and the evidence demonstrate, the Respondent has provided some income tax records for 2013, 2014, and 2016. He had provided some bank and credit card statements. However,
(a) as required by the order dated September 12, 2017, he had not provided a copy of the job contract that he expected would be finalized by the end of September 2017; (b) as required by the order dated October 20, 2017 he had not provided bank and credit card statements “on an ongoing basis” nor had he provided particulars of sale and or purchase of assets nor had he provided an employment update on the last day of each month; (c) as required by the order dated April 16, 2018 he had not provided a copy of the shareholder’s agreement and all financial information regarding his new job/shareholder; he had not provided quarterly production of deposits reflecting business income; he had not provided bills of sale within 30 days; (d) as required by the order dated June 11, 2018 he had not produced all documents relating to the new job by June 20, 2018; nor had he produced all bank accounts and other financial statement tracing funds he had received; (e) as required by the order dated June 11, 2018 he had not provided an updated financial statement form 13 for the motion; (f) as required by the Family Law Rules, he had received two Form 20 Request for Information, namely January 2018 and April 3, 2018. At Exhibit M, the Applicant provided a copy of his email dated April 4, 2018 in response to the latter Form 20. In that email, he said: I have received your package – I have discarded it. I will not reply to it after this”.
42I turn to what the Respondent says he has done.
43Instead of a sworn form 13 financial statement, the Respondent filed an affidavit sworn June 22, 2018 in which he deposed his finances had not changed “significantly” from his last form 13.1 financial statement sworn April 2018 except that his rent was $1700; he had changed jobs but for the same salary of 50,000 CAD annually against commission (to be revised annually) and the “previous company” owed him 9,000 VS 5000 as of April. The record before me on this motion does not include a financial statement sworn April 2018. He is required to serve and file a form 13. He had not provided documentation with respect to the old job and provided none with respect to the new job. He had not provided documentation with respect to what the previous company owed him. Those were “significant” changes that required an updated form 13 even without the order of Kristjanson J. dated June 11, 2018 that both parties serve and file it for the motions.
44The Respondent’s lengthy affidavit sworn June 22 includes 31 exhibits of which the following contain financial disclosure:
Exhibit O is the first page and page 12 of a 13 page contract between Rahal Medicine Professional Corporation and the Respondent. On the basis of the two pages provided, it contemplates that the Respondent will provide services to Rahal as described in Schedule A which is not attached. The Commission Plan is described in Schedule B which is not attached. It is accepted and signed by the Respondent and dated June 6, 2018.
Exhibit P is a notice from York/Humber Employment & Social Services that confirmed his appointment on May 31, 2018 – one week prior to the date on Exhibit P. In submissions he relied on this document as proof that he had been approved by welfare but it does not do so.
Exhibit Q is a copy of a letter dated June 5, 2017 attaching income tax information for the years 2013, 2014 and 2016; and a letter dated June 1, 2017.
Exhibit R includes copies of T4A for 2015 (totaling $110,116) and for 2016 (totaling $58,507). I note that they moved to B.C. in 2016 so that the Respondent could pursue a business opportunity from which I infer that he was optimistic he would make the same if not more than he made in 2015 and that the total for 2016 is more than the income imputed to him on consent as the basis for the order dated January 10, 2018.
Exhibit S is another copy of the June 1, 2017 letter.
Exhibit T is a copy of an email dated October 14, 2017 attaching a copy of his curriculum vitae in which the last entry is 2016.
Exhibit U is a “Forgivable Financing Agreement’ between the Respondent and a realty company dated July 21, 2017 which the Respondent describes as showing that he was joining and studying for his real estate license as he was trying to find work in his original field of hair transplants.
Exhibit V is an exchange of emails dated August 28 and 29, 2017 between the Respondent and Dr. Alexander setting up a time for a telephone call. It also contains an email dated December 8, 2017 (re-sent June 19, 2018) from the Respondent to Mr. Dominitz on the subject: “Without Prejudice: Please review by MONDAY: potential job offer(s) and interviews this coming week. Financials.” The Respondent described these as showing his attempts to ascertain a contract with a hair transplant doctor in Toronto.
Exhibit Z is a picture of the window of his car that he said had been broken into which was related to his assertion that documents had been stolen from his car.
Exhibit BB includes an email dated April 15, 2018 in which the Respondent informed the Applicant that he had just sent her all of the visa statements for the fourth time and that he had filed his financial statement in the continuing record. It also includes emails with the real estate lawyer confirming that of the $46,259 allocated to the Respondent from the proceeds of sale of the condominium held in trust, $13,128 had been paid to the Receiver General; $15,729 had been paid to the Respondent’s former lawyer; and $17,401 had been paid to the Respondent. He has included 78 unnumbered pages of what appear to be bank records. In an attempt to identify what he provided, I have numbered the pages. Pages 1 – 24 appear to be Desjardins bank statements the most recent of which is dated January 11, 2018. Page 25 is indecipherable. Pages 26 to 45 appear to be computer print outs. The account number and bank are not readily identifiable. On the top left hand of each is the date April 26, 2017 and they all show a balance on January 19, 2018 of $3,081.37 which makes no sense. Page 46 is an account summary but the account number and the bank and date are not on the document. Pages 47 to 49 are called “e-Transfer history” with the most recent dated January 4, 2018. Page 50 is a statement for a personal line of credit with the date on the bottom: “current: Nov. 11, 2017”. Starting at page 51 to 60 are what appear to be computer print outs in the same format as pages 26 to 45 but the heading “Business” has been inserted. On the top left hand side of each page is the date March 7, 2017 and they all show a balance on January 19, 2018 of $0.00. Starting at page 61 to 78 are similar computer print outs with the word “personal” written on page 61. The date on the top left hand side is April 26, 2017 and they all show a balance on January 19, 2018 of $3,081.37, which, again, makes no sense.
In the course of submissions, the Respondent suggested that some of the documents in Exhibit BB were more recent but that is not apparent. Furthermore, I understood him to say that while some of them had been provided by his lawyer in January, some of them were provided for the first time attached to his affidavit, which meant that the Applicant had not had an opportunity to examine them.
Exhibit CC is what he has headed “overview 2017” which he describes as the “breakdown per the above order send on January 22, 2018” from which I infer that he thinks it constitutes the tracing he was required to provide. It does not comply.
Exhibit DD includes emails dated April 8 and April 9, 2018 by the Respondent to the Applicant in which he insists that the breakdown of transfers he had provided in January is all he had to do. Based on the April 8 email, it appears that the Applicant had sent him an email listing what he had not provided and then she had re-sent it with red highlighted additions. She also pointed out issues with the disclosure he had provided including the Form 20 that was sent to him on April 4, 2018. It appears she had reviewed the bank records referred to in Exhibit BB and she pointed out significant deposits in the period March 3, 2017 to January 19, 2018 for which she sought an explanation. In his April 9 email, amongst other things he said “the july 11 order is clear that child support is not on past income and only what I am currently making which is 50,000 a year”. This exhibit also contained emails dated June 6, 2018 between the Respondent and Dr. Rahal with respect to the contract.
45In his 60 page affidavit, his evidence was, variously, that he had complied with disclosure orders, indeed he had complied on several occasions; that he could not produce what didn’t exist; that he blamed his car having been broken into and documents stolen as well as blaming Mr. Dominitz. He blamed the Applicant because she did not have the January 10 order issued and entered until April 26, and, based on what he said he was told by some unnamed person at the FRO, he said he understood he could not pay table child support or the arrears until the order was in the hands of FRO – ignoring the legal reality that he could pay directly. But he has not complied since April 26 in any event. He did not accept any failure to comply with any order.
46During submissions I suggested to the Respondent that in a motion such as this it was incumbent on him to demonstrate where he disagreed with the table in paragraph 26 of the Applicant’s affidavit, explain why he had not produced remaining items and confirm when he would be fully in compliance. He ultimately said he “fully took responsibility for non-compliance” but did not accept where he had failed to comply and went on to blame the counsel that he had retained at least until January. He insisted that because of his inexperience, he had consented to the various orders, including for disclosure, and now he realized he ought not to have done so. He also referred to Exhibit P as demonstrating that he had been approved by welfare. In response to my question, he provided no explanation for the omissions in Exhibit O. He did not deny that he had not complied with the January 10 consent order with respect to child support. He did not challenge the calculation of the arrears or table support. I understood him to take the position that he had paid 50% for the month of April because he assumed, wrongly as I pointed out, that, as a result of the increased parenting time, he would not have to pay any child support. He acquiesced that he had not paid the arrears of $2350 required by the January 10 consent order.
47After hearing submissions, it was a significant challenge for me to review his exhibits and particularly Exhibit BB in an effort to determine the extent of his non-compliance. While he said he “fully took responsibility for non-compliance”, he did not do so. He showed no remorse for his non-compliance. He did not demonstrate that, if he were given more time to comply with the many outstanding orders, he would do so. He never asked for more time – until Duty Counsel suggested that, with an adjournment, he would have time to obtain legal advice and then get into compliance. The Respondent did not make that request during his submissions.
48Indeed, the attitude of the Respondent is summed up in his factum at paragraph 28 on page 6 where he insists that he has already produced “the financials” and he is “sick and tired of the games” played by the Applicant and her lawyer. At paragraph 14 on page 7 of his factum, the Respondent also asserted that “this motion is an attempt to bypass a court order which already heard the applicants motion on basing the fathers income on previous income and was DENIED by judge Paisley as reflected in the July 11, 2017 court order”. What Paisley J. held at paragraph 9 is as follows: “The father states that he is unemployed. I am unable to order child support on the basis of his past employment. He states that he has just moved from British Columbia. Standard income disclosure is ordered as per the attached”. In other words, the Respondent tenaciously hangs on to a paragraph in an order that preceded (a) financial disclosure and (b) the consent order dated January 10, 2018 in which the court accepted an implied income because the Respondent had failed to provide disclosure on which his current income could be determined. His repeated reliance on that paragraph in the July 11 endorsement is without legal foundation.
49I turn to the consequences of the Respondent’s failure to comply with disclosure orders and his failure to pay temporary child support.
50Rule 1(8) of the Family Law Rules provides that if a person fails to obey an order, the court may make any order that it considers necessary for a just determination of the matter, including an order for costs, an order striking out an answer, financial statement, affidavit or any other document filed by a party. Pursuant to Rule 1(8.4), if a party’s answer is struck out, the following consequences apply unless a court orders otherwise: the party is not entitled to any further notice of steps in the case; the party is not entitled to participate in the case in any way, and the court may set a date for an uncontested trial.
51Pursuant to rule 2(2) and (3), the primary objective of the rules is to enable the court to deal with cases justly which includes ensuring that the procedure is fair to all parties.
52In the decision in Purcaru v Purcaru, 2010 ONCA 92 the Court of Appeal dismissed an appeal from an order of the trial judge striking his pleadings and held that pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice. This is particularly so in a family law case where the resulting judgment may provide for continuing obligations that can only be varied on proof of a change in circumstances. A change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thus perpetuating injustice. Similarly, special care must be taken in family law cases where the interests of children are at issue. King v. Mongrain, 2009 ONCA 486 at para 31.
53The Respondent has experience working in the hair transplant business. As a self-employed person, his income is not as ascertainable as a T4 employee. The remaining financial issue in this case is the amount of his income and his obligation to pay child support table amount and s. 7 expenses. As an indication of the significance of his income, six of the endorsements make reference to employment, purchase of assets, looking for a job and travel for work, new job/shareholder and new job. [3] While the child support guidelines start with identifying the payor’s historical line 150 income, s. 16, 17, 18 and 19 are relevant and broaden the inquiry so that the court may have a reliable basis on which to make findings as to the payor’s current income and other financial circumstances.
54As indicated above, disclosure of the Respondent’s circumstances since March 2017 and currently and prospective changes is crucial. His T4A’s for 2015 indicate that he had significant earnings. He has failed to fully comply with orders dated September 12, 2017, October 20, 2017, January 10, 2018, April 16, 2018, May 22, 2018 and June 11, 2018. He has provided some documentation but it is static in that it speaks to the moment of disclosure. He has failed to provide any ongoing disclosure. More than one year after the application was issued, neither the Applicant nor the court has any idea what his income is and no basis upon which to establish his income and therefore his child support obligation. The only order with respect to his income was the January 10 order in which he acquiesced in imputing income of $51,000. Based on what he has disclosed, I infer that that was conservative.
55Now he says he has been approved for social assistance. The documentation he has provided does not support that. I infer that he is trying to show that he has minimal income in order to avoid paying child support.
56In his 60 page affidavit sworn June 22 and in his submissions, he takes the position that he was a fully involved parent while they lived together in Vancouver; that the Applicant simply left Vancouver precipitously with the child and deprived the child and him of the parenting relationship; and that it took him months to obtain an order for supervised access and he has had to fight tooth and nail to get increased time with his daughter. He has had some unfortunate family history that motivates him not to have his daughter suffer the loss of a parent due to a breakdown in the relationship between the parents.
57I am unable to decide whether the Applicant’s sudden departure from Vancouver was reasonable and whether the denial of parenting time and acquiescence in increasing the time over months was reasonable. That is not an issue before me. What is relevant is that the Respondent has demonstrated unilateral conduct in: (a) not providing ongoing disclosure in the face of considerable uncertainty in his current income; (b) persistently and wilfully refusing to consider two Requests for Information; (c) his insolence and lack of respect for and blatant disregard for the process and the orders of the court; (d) not paying the child support to which he consented; and (e) deciding that, as a result of the April 16 order, he would pay only 50% of child support for April and he would assume that that interim order would be automatically changed to reflect his increased time. His non-compliance has resulted in the settlement conference on June 11, 2018 not being productive on financial matters and multiple attendances seeking to compel disclosure thereby increasing the stress and the cost to the Applicant. Furthermore, as his evidence shows, in taking the less than 18 month old child to Ottawa and out of Ontario (including Quebec, British Columbia and Alberta) on at least 6 occasions without seeking consent from the Applicant notwithstanding an order in which she obtained his consent to allow her to travel from which I infer he knew he ought not to take matters into his own hands. He has used the court process to achieve his ends of increasing his parenting time with the child while disregarding any of the outcomes, including those on consent, that benefitted the Applicant.
58The Applicant has met the test for striking his Answer. The circumstances are exceptional and egregious. Manchanda v. Thethi, 2016 ONCA 909 at para. 9. I adopt the direction of the Court of Appeal in Manchanda at para 13:
Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7 th ) 6, at para. 11). In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.
59In this case, in order to meet the primary objective of dealing with cases justly, which includes ensuring that the procedure is fair to all parties, there is no alternative to striking his Answer. His conduct amounts to a “consistent and unyielding pattern of non-compliance with court orders and a total disregard for the process of the court”. Ablett v. Horzemba, 2011 ONCA 633 at para. 7. Striking his Answer is an appropriate sanction to recognize the court’s “responsibility for the effective administration of justice”. [Vacca v. Banks (2005) 6 C.P.C. (6th) 22] at p. 27. There is no other remedy available.
60Where it is just to do so, the distinction between financial and parenting issues can be addressed by striking an Answer and Claim for one purpose but not the other. For example in Santos v. Pantelidis, 2016 ONSC 164, I struck out the Application with respect to financial matters but allowed the Applicant to fully participate in the trial of the parenting issues:
9Much to the frustration of Mr. Pantelidis, Ms. Santos has been given every opportunity to comply and she has failed to do so. Her continuous and repeated non-compliance is a triggering event that engages sub- rule 1(8) of the Family Law Rules. Absent any responding material which explains the non-compliance or apologizes for the non-compliance or asserts prospective intention to comply, there is no basis to exercise any discretion in her favour. Rule 2(3) requires the court to deal with cases justly by ensuring that the procedure is fair to all parties. Having been required to bring 5 motions and having been confronted with continuous and repeated non-compliance means that the procedure has been exceedingly fair to Ms. Santos. In deciding the outcome of this motion I must recognize the need to ensure that Mr. Pantelidis has the same right to be treated fairly.
10I turn to the remedy. In Purcaru v Purcaru, 2010 ONCA 92, the Court of Appeal dismissed the appeal by a husband from a judgment striking his pleadings and precluding his participation in trial. This is a case where Ms. Santos should have her Application struck and her participation denied. However, I am not prepared to eliminate her involvement as it relates to the parenting issues. The court ought not to preclude her participation on issues which will impact the best interests of the child particularly when the only glimmer of compliance is with respect to the access order dated December 10. But I see no basis for permitting her to participate in the proceedings with respect to any of the financial issues including the claims for damages, equalization of net family property and spousal support and child support.
11In order to accomplish the distinction between her participation in some issues but not others, I will allow the financial issues to proceed on an uncontested basis while leaving the parenting issues to include the involvement of both parties.
61As indicated above, in Purcaru, the Court of Appeal directs that “special care must be taken in family law cases where the interests of children are at issue”. The Respondent’s conduct has not yet reached the stage where he should be denied the opportunity to participate to the extent of parenting issues. However, he should be denied the opportunity to participate to the extent of non-parenting issues.
62In his Answer, the Respondent opposed all of the orders sought by the Applicant. Given my conclusions above, with respect to all non-parenting issues, pursuant to rule 1(8), the Respondent’s Answer is struck with the automatic consequences in rule 1(8.4).
63The only non-parenting order he sought in his Answer was at page 5 paragraph 3 namely “an order that the applicant reimburse the respondent for financial damages he suffered due to her refusal to release funds from trust, owned jointly by the parties”. However, as indicated above, the parties have settled all property claims.
64In paragraph 23 of his notice of motion the Respondent asked for leave to amend his Answer to claim sole custody in addition to his existing claim for joint custody. This was one of the two paragraphs in his notice of motion I held was properly before me. The Respondent did not provide a proposed draft amendment. Pursuant to rule 11(3), the court is expected to give permission to a party to amend an Answer unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. On that basis, the court should give permission. However, I am satisfied that to do so would not be a “just determination of the matter” as contemplated by rule 1(8) for two reasons. First, based on the record before me, the request is for strategic purposes. Second, the Respondent ought not to be able to take advantage of rule 11(3) when he is in breach of other orders of the court.
Paragraph 5 of Respondent’s Notice of Motion
65The Respondent asked for an order for “travel with Maya outside of Canada as the mother refuses to consent to allow me to”. As indicated above, in her endorsement dated June 11, Kristjanson J. gave the Respondent “leave to bring a VERY limited access motion ONLY for the purpose of summer holiday schedule, 2018, as he wishes to travel to BC with his daughter; also to address out of Canada consent to travel permission; and Amendments to the Answer re child support and custody”.
66In the other paragraphs of his Notice of Motion that I ruled were not properly before me, the Respondent asked for several changes to the parenting status quo last articulated in the consent orders dated April 16 and June 11. He did not bring a motion specifically related to the summer holiday schedule 2018 or to the issue of B.C. He asked only with respect to out of Canada. This is the second of two paragraphs of his Notice of Motion that I held were properly before me.
67At the conclusion of submissions on Thursday June 28 at about 5:00 p.m. I made this endorsement:
. . . the evidence is that the respondent has travelled on at least 6 occasions with the child in Canada. He “understood” that there were no restrictions on his ability to travel in Canada. He travelled with the child even tho, after he asked the applicant in an email dated April 24, 2018 for her consent to travel and she responded within about 24 hours that she did not consent. I have treated this as is request to travel outside Ontario, as Justice Kristjanson permitted.
In all of the many orders in this case the only one dealing with travel was Justice Hood’s consent order dated Feb. 22/18 allowing mother to travel on certain conditions.
There is no justification for the respondent’s “understanding” that he could travel anywhere in Canada. The fact he has done so is very concerning. The child is 20 months old. The upheaval in her circumstances since March 2017 has been enormous. The Respondent has taken matters into his own hands. Indeed the Applicant did not know the extent of the travel until she read his June 22, 2018 affidavit. I am not persuaded it is in the best interests of the child to allow the respondent to travel as he wishes between now and the trial. A child of this age and in her circumstances requires stability and predictability.
While I will make clear the restrictions on the Respondent’s travel, I see no basis for restricting the Applicant’s travel because she has been more responsible about exposing the child to travel. However, pending the trial, she ought not to take the child out of Canada on an interim basis.
Order to go as follows:
Until a decision after trial, the Respondent is prohibited from taking the child out of the province of Ontario.
If the Respondent takes the child out of Toronto but in Ontario, before he leaves Toronto, he shall inform the Applicant by Our Family Wizard when he will leave and return, what method of transportation, and where the child will be living.
Until a decision after trial, the Applicant is prohibited from taking the child outside of Canada.
Next Steps
68As indicated below, the next step is the settlement conference/trial management conference on the parenting issues and the trial management conference on the non-parenting issues. Kristjanson J. expected that that would occur in September in the expectation that the trial could be heard before the end of 2018.
69I note that Kristjanson J. allowed questioning. Since the non-parenting issues are to proceed on an uncontested basis, the Applicant should have the right to question the Respondent but the Respondent is deprived of the right to question the Applicant. Furthermore, given the volume of evidence by affidavits, I see no reason for the parties to conduct questioning in the parenting issues.
70The Applicant asked that the Respondent’s Answer and other documents be struck. It is only the Answer that needs to be struck.
Costs
71Mr. Dominitz did not bring a costs outline and was not expecting to make submissions as to costs. He asked to make written submissions but I insisted on hearing his submissions on June 28.
72Counsel asked for costs of prior attendances as well as of this motion. As indicated above, in some instances the court’s endorsement dealt with costs and in those cases, I cannot change the outcome. With respect to the hearings on March 16, 2017, March 30, 2017, and April 24, 2017 costs were reserved. I do not consider those to be relevant to costs to be imposed in striking the Respondent’s Answer. With respect to the hearings on July 12, October 20, January 10, April 16, May 22 and June 11, the endorsement was silent as to costs. The July 12 endorsement simply endorsed a consent order and ought not to attract costs. Each of those others dealt with disclosure and are relevant to costs to be imposed at this time. However, in the first three the Applicant had counsel and in the remaining three she did not have counsel. On balance, I am not prepared to order costs at this stage without a costs outline and I am not prepared to afford the Applicant an opportunity to submit a costs outline at this time. I will reserve those costs to the judge hearing the uncontested trial of the child support issues.
73The Applicant was successful on three of the four requests in her notice of motion. She is presumed to be entitled to costs. The Respondent was not successful on any aspect of his notice of motion and the Applicant is presumed to be entitled to costs of that motion.
74I do not know whether Mr. Dominitz assisted in preparation of her affidavit, factum and form 13 financial statement and factum. Her affidavit and financial statement were commissioned by someone in the law firm of Mr. Dominitz but that does not provide information about the extent of lawyer involvement. I will reserve those costs. I am however satisfied that the Respondent should pay costs incurred by the Applicant in his preparation for and attendance at a motion scheduled to start at 10:00 and finishing at about 5:30 p.m. Based on the attitude displayed by the Respondent in his written material and in his submissions, I am confident that he did not make an offer that would have any impact on costs.
ORDER TO GO AS FOLLOWS:
75The motion by the Applicant is granted and the Answer of the Respondent with respect to non-parenting issues is struck out on the following conditions:
(a) the Respondent is not entitled to any further notice of steps in the case; (b) the Respondent is not entitled to participate in the case in any way including the following: (i) the Respondent is prohibited from defending against the Applicant’s claim for child support and is prohibited from participating in the uncontested trial; (ii) the Respondent is not entitled to conduct questioning of the Applicant with respect to non-parenting issues; (iii) before August 31, 2018 the Applicant is entitled to conduct questioning of the Respondent with respect to non-parenting issues; (iv) the Respondent shall attend for such questioning at the time and place indicated on the appointment for his attendance so long as he is served at least 7 business days in advance and on that attendance, he shall answer questions for up to 180 minutes; (v) if the Applicant brings any motion(s) to compel disclosure from third parties on his financial circumstances the Respondent is not entitled to notice of such motion and not entitled to attend and make submissions.
76The claim in paragraph 4 of the Applicant’s notice of motion is dismissed because it was not authorized by the order dated April 16, 2018.
77The motion by the Respondent is dismissed with costs indicated below.
78The claim in the Answer on page 5 at paragraph 3 for an order for reimbursement is dismissed because it was settled pursuant to the consent order dated July 12, 2017.
79The Respondent shall pay costs of the hearing on June 28, 2018, namely the granting of the motion by the Applicant and the dismissal of the motion by the Respondent, fixed in the amount of $3500 payable by July 25, 2018.
80Costs of the hearings on October 20, 2017, January 10, 2018, April 16, 2018, May 22, 2018 and June 11, 2018 as well as preparation by or on behalf of the Applicant with respect to the motions heard June 28, 2018 are reserved to the judge hearing the uncontested trial of the non-parenting issues.
81If the Respondent fails to pay the costs referred to in paragraph 79 then at the settlement conference/trial management conference on the parenting issues, the Applicant may bring a further motion to strike the Answer of the Respondent on parenting issues.
82Neither party may bring any motion before the commencement of the trial on the parenting issues and, if at trial, only with leave of the trial judge.
83Notwithstanding the order by Kristjanson J. dated June 11, 2018, neither party may question the other on parenting issues.
84The Applicant shall forthwith contact the Trial Co-ordinator to schedule a settlement conference/trial management conference no later than September 28, 2018 before Kristjanson J. if available and otherwise before Stevenson J. or Kiteley J. The agenda for the settlement conference/trial management conference is as follows [8]:
(a) with respect to the parenting issues, the court shall set a date for a contested trial. The Respondent may participate in the settlement conference/trial management conference. The Applicant and Respondent shall serve and file part 1 and part 2 of the trial Scheduling Endorsement at least 7 days before the conference. (b) With respect to the non-parenting issues, the court shall set a date for an uncontested trial. The Respondent is prohibited from participating in the trial management conference. The Applicant shall file (not serve) part 1 of the Trial Scheduling Endorsement at least 7 days before the conference.
85Until further order, each party may serve the other party by email.
86The Applicant may take out this order without approval as to form and content by the Respondent.
Kiteley J. Date: July 05, 2018
[1] Purcaru v Purcaru, 2010 ONCA 92 at para 47 to 50 [2] King v. Mongrain, 2009 ONCA 486 at para 31 [3] September 12; October 20; January 10; February 15; April 16; and June 11. [4] Manchanda v. Thethi, 2016 ONCA 909 at para. 9 [5] Ablett v. Horzemba, 2011 ONCA 633 at para. 7 [6] Vacca v. Banks (2005) 6 C.P.C. (6 th ) 22 at p. 27 [7] Santos v. Pantelidis, 2016 ONSC 164 [8] Similar to the endorsement in Santos v. Pantelidis, 2016 ONSC 6994
