Court File and Parties

COURT FILE NO.: FS-15-20518-0001 DATE: 20181115 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Miranda Beth Hill, Applicant AND: Ken Charles Gregory, Respondent

BEFORE: Sanfilippo J.

COUNSEL: Michael J. Stangarone and Meghann Melito, for the Applicant Jason Gottlieb, for the Respondent

HEARD: October 25, 2018

Endorsement

Overview

[1] The Applicant, Miranda Beth Hill, and the Respondent, Ken Charles Gregory, were in a common-law relationship for eight (8) years. They had no children. The parties separated on February 5, 2014. Ms. Hill initiated an Application that was determined by a Final Order issued by Paisley J. on May 26, 2017 (“Final Order”). The Final Order was rendered following an uncontested trial that occurred after the Respondent’s pleadings were struck because he had failed to comply with Court Orders.

[2] The Respondent did not appeal or seek to vary or set aside any of the Court Orders that he had failed to comply with leading to the rendering of the Final Order, and did not appeal or seek to vary or set aside the Final Order. Rather, the Respondent simply set upon a path of non-compliance with all Orders, including the Final Order, excusing his conduct as a product of his disagreement with those Orders and his alleged lack of financial resources necessary to comply with the monetary terms.

[3] On January 17, 2018, the Respondent brought a Motion to Change the Final Order. He filed this Motion on April 4, 2018. The Respondent seeks to reduce the amount of spousal support, obtain a termination date for the spousal support and establish a value for his 51% interest in the privately-held corporation through which he carries on business: Solid Source Tire & Wheel Inc. (“Solid Source Tire Inc.”).

[4] The Respondent’s Motion to Change was brought after the Director of the Family Responsibility Office (“FRO”) commenced enforcement proceedings against the Respondent in September 2017 for enforcement of the substantial arrears in support payments, costs and interim disbursements owed to the Applicant that were subject to a Support Deduction Order (“SDO”), totaling in excess of $97,000. These amounts were apart from the amounts owed by Mr. Gregory to Ms. Hill outside of the SDO, totaling $41,888.44.

[5] In a Default Hearing conducted in the enforcement proceeding in January 2018, Pawagi J. issued a Temporary Default Order requiring that the Respondent pay $3,000 each month to the Applicant for current and past spousal support, on the finding that the Respondent had sufficient funds to do so. The Respondent has paid these monthly obligations since January 2018.

[6] The Applicant’s Response to Motion to Change was delivered on June 5, 2018. At a case conference conducted before a Dispute Resolution Officer on July 17, 2018, the Respondent entered into a consent Order to provide the Applicant with eight categories of disclosure within thirty (30) days. The Applicant scheduled a motion to seek to dismiss or stay the Motion to Change on several grounds, but principally based on the Respondent’s failure to comply with Court Orders, including the Final Order.

[7] The Respondent provided greater substance to the Applicant’s contention that the Respondent has chronically failed to comply with Court Orders by failing to comply with the consent Order entered into on July 17, 2018. The Applicant brings this motion to dismiss or to stay the Respondent’s Motion to Change, and does so principally on the basis of the Respondent’s breaches of Court Orders, said now to total seven.

[8] For the reasons that follow, I grant the Applicant’s Motion in part. The Respondent’s Motion to Change is stayed until the Respondent complies with those elements of the Court Orders that are outstanding and were not addressed by the Temporary Default Order. Since I have determined that the Respondent’s Motion to Change is stayed, I dismiss as premature the Applicant’s motion to summarily dismiss the Motion to Change, without prejudice to it being reinstated once the Respondent complies with the terms of the stay.

I. Framework for Analysis

[9] In addition to the designations Applicant and Respondent, I will at times use the terms “Wife” and “Husband”, respectively, to describe the parties, to add clarity to what follows.

A. Relief Sought in this Motion

[10] In a broad Notice of Motion dated September 24, 2018, the Applicant sought extensive relief in response to the Respondent’s Motion to Change, seeking remedies ranging from a stay, to orders seeking disclosure, to an order for summary dismissal of the Motion to Change on the basis that it raised no genuine issue for trial. The merit-based determination required for assessment of summary dismissal of the Motion to Change would not be conducted if the Applicant’s request for a stay were granted. As such, the Applicant’s structure for argument, and relief sought on this motion is as follows:

a) an Order for the dismissal of the Motion to Change based on Rules 1(8)(b) and (c) of the Family Law Rules, O. Reg. 114/99 (“FLR”); b) an Order for the stay of the Motion to Change based on FLR 1(8)(e); c) an Order for the Respondent to post security for costs as a condition of continuing with the Motion to Change, pursuant to FLR 24(13); d) an Order for the summary dismissal of the Motion to Change, pursuant to FLR 16(6) and 16(12) and section 140(5) of the Courts of Justice Act.

[11] In accordance with this structure, the Applicant’s motion focused principally on the issue of whether the Respondent’s Motion to Change ought to be stayed or dismissed by reason of the Respondent’s breach of Court Orders, on the basis of FLR 1(8). I address this threshold issue first, as a gateway to consideration of whether the Motion to Change raises genuine issues requiring trial or could be determined summarily. To do so, I will analyse the record of Court Orders in this Application, and the Respondent’s conduct in relation to them.

B. Record of Respondent’s Breach of Court Orders

[12] The Applicant submitted that the Respondent failed to comply with four Orders issued prior to the Final Order, failed to comply with the Final Order and a related Order, and has failed to comply with a disclosure Order rendered on consent after the issuance of the Final Order. These Orders will be described and assessed chronologically.

The April 2016 Order

[13] At a case conference conducted on April 1, 2016, the Applicant and the Respondent, both represented by counsel, agreed to terms that were incorporated into an Order of Paisley J. issued on April 1, 2016 (the “April 2016 Order”). These terms included that the Husband produce the nine categories of disclosure sought by the Applicant within 45 days, that late filing of the Husband’s Answer was permitted, that motions could be brought and that Paisley J. would case manage this Application. A Restraining Order was issued prohibiting the Respondent from being in contact with the Applicant. The Respondent did not comply fully with the production of the disclosure required by the April 2016 Order. The Respondent thereby breached the April 2016 Order.

The June 2016 Order

[14] On May 30, 2016, Glustein J. heard a long motion brought by the Applicant to seek temporary spousal support, interim disbursements and other relief. On the basis of reasons for decision rendered on June 2, 2016, Glustein J. ordered as follows (the “June 2016 Order”):

a) commencing January 1, 2016 and on each month following, the Respondent was ordered to pay the Applicant temporary spousal support in the amount of $2,000 per month, on a without prejudice basis; b) the Respondent was ordered to pay the Applicant interim disbursements in the amount of $30,000 plus HST, for legal and professional valuator fees, in accordance with FLR 24(12); c) the Respondent’s motion to remove the Restraining Order was dismissed; d) a Support Deduction Order was issued for the enforcement of the support obligations by the Family Responsibility Office.

[15] The Court found that the Wife was entitled to spousal support on the basis of need. The Court imputed to the Husband income in the amount of $150,000 per year. This imputation of income was based on the Husband’s reported income of $125,000, as well as the amounts that he received from the Solid Source Tire Inc. business. The Court then determined that the amount of spousal support should be at the high end of the spousal support guidelines and thereby fixed the spousal support at $2,000 per month.

[16] The Respondent did not pay the Applicant the interim disbursements in the amount of $30,000 plus HST. The Respondent did not pay the spousal support. The Respondent thereby breached the June 2016 Order.

The June 2016 Cost Order

[17] After receiving and considering written submissions on costs of the long motion that resulted in the June 2016 Order, Glustein J. awarded costs in the amount of $25,000 (inclusive of disbursements and HST) payable forthwith by the Husband to the Wife (the “June 2016 Cost Order”).

[18] The Husband did not pay the Wife the $25,000 cost award. As such, the Husband breached the June 2016 Cost Order.

The September 2016 Order

[19] On September 13, 2016, the Wife brought a motion for a determination that the Husband was in breach of the April 2016 Order, the June 2016 Order and the June 2016 Cost Order. On such a finding, the Applicant asked for an Order striking the Husband’s pleadings or, in the alternative, prohibiting the Husband from taking any further steps or obtaining any further orders until his breaches were remedied.

[20] Stevenson J. found that the Husband was “clearly in breach of the three court Orders” and that he was attempting to re-argue the motion for spousal support and interim disbursements. Stevenson J. observed that none of the Court Orders had been appealed: “If the Respondent disagreed with any of the Orders, he had a right of appeal and he chose not to do so”.

[21] By endorsement dated September 13, 2016, Stevenson J. ordered that the Husband would have thirty days to comply with the April 2016 Order, the June 2016 Order and the June 2016 Cost Order, and in the event that he did not do so, his pleadings would be struck (the “September 2016 Order”). The Husband was ordered to pay costs to the Wife, within thirty days, in the amount of $6,500.

[22] The Husband did not comply with the three Court Orders within the time provided. The Husband did not pay the cost award rendered by Stevenson J. in the September 2016 Order. The Husband thereby breached the September 2016 Order.

The Final Order

[23] On May 26, 2017, Paisley J. heard the uncontested trial and granted a Final Order as follows:

a) the Husband was ordered to pay the Wife spousal support in the amount of $2,400 per month starting on May 1, 2017; b) the Court found that the Husband owed the Wife arrears of spousal support in the amount of $33,600 as at April 30, 2017 and thereby ordered the Husband to pay this amount by May 31, 2017; c) the Court declared that the Wife holds a beneficial interest in the Husband’s 51% share of Solid Source Tire Inc., by way of constructive trust, and ordered that this interest be transferred and vested in the Wife, solely; d) the Court ordered that the Husband maintain life insurance coverage in the amount of $150,000 for the benefit of the Wife during the duration of his spousal support obligations, and required the Husband to designate the Wife as the irrevocable beneficiary of this life insurance policy; e) certain costs and expenses from the previous court Orders as well as a portion of the costs of the uncontested trial were, along with the support Order, ordered to enforced by the Director of the Family Responsibility Office (“FRO”), pursuant to section 1(1) of the Family Responsibility and Support Enforcement Act; f) the costs of the uncontested trial were ordered to be paid by the Respondent to the Applicant, apart from those amounts whose payment was ordered to be enforced by FRO.

[24] In addition to the Final Order, Paisley J. ordered, also on a final basis, that the Restraining Order initially rendered on April 1, 2016 shall remain in effect until terminated or changed by further Order.

[25] The Respondent has not complied with any of the terms of the Final Order. The Husband is in breach of the Final Order.

The 2017 Order

[26] On September 11, 2017, Hood J. issued an order restraining the Husband from assigning, depleting, transferring or otherwise dealing with his interest in Solid Source Tire Inc. (the “2017 Order”). Additionally, Hood J. ordered that the consent of the directors of Solid Source Tire Inc. was dispensed with in regard to the transfer of the Husband’s 51% interest in this company to the Wife, as required by the Final Order. The Husband has not transferred his interest in Solid Source Tire Inc. to the Wife, such that he is in breach of the 2017 Order.

The Enforcement Proceeding

[27] The Director of FRO began enforcement proceedings against the Respondent in September 2017 in the Ontario Court of Justice, file number DFO 17-15621 (the “Enforcement Proceeding”). The first appearance was on November 20, 2017. On January 29, 2018, Pawagi J. conducted a default hearing.

[28] The FRO Director’s Statement of Arrears showed that in the period from the issuance of the June 2016 Order through to January 3, 2018, the Respondent did not make any payments in support of the Applicant, whether by way of partial payments or lump sum payments or otherwise.

[29] Additionally, the Respondent did not complete the non-monetary, conduct steps ordered by the Court. Namely, the Respondent did not designate the Applicant as the beneficiary of the Respondent’s life insurance policy, as required by the Final Order, and did not transfer the 51% interest in the corporation that he was found to holding in constructive trust for the Applicant, as required by the Final Order and by the 2017 Order.

[30] Through her Endorsement of January 29, 2018, Pawagi J. found that the Husband’s outstanding arrears on the spousal support ordered to be paid by the Final Order were, as at May 26, 2017, in the amount of $97,552.67. Her Honour stated as follows:

I find the payor has not rebutted the presumption that he is capable of paying ongoing spousal support of $2,400 per month given the discretionary income available as set out in the Financial Statement. … I find there are sufficient funds available to the payor to cover the ongoing support, and some towards arrears, although not to the extent proposed by counsel for FRO.

Temporary default order to go in the amount of $2400 per month towards ongoing spousal support and $600 per month towards arrears commencing February 1, 2018. There shall be an incarceration term of 3 days per each payment default.

[31] The Enforcement Proceeding was adjourned to May 30, 2018 to monitor the Husband’s compliance with the Temporary Default Order, and was subsequently adjourned further pending developments in the Motion to Change.

The 2018 Disclosure Order

[32] On July 17, 2018, the parties conducted a case conference in the Motion to Change before a Dispute Resolution Officer. In addition to agreeing to the timetable for the development of this motion, the parties agreed on eight categories of financial disclosure for the Respondent to complete within thirty (30) days. These consent terms were submitted, by way of motion in writing, for a Court Order. On September 24, 2018, Paisley J. issued a temporary Order, on consent, scheduling the timetable for this motion as well as ordering that the Respondent produce the disclosure agreed to within 30 days (the “2018 Disclosure Order”).

[33] By affidavit sworn by his counsel and dated August 17, 2018, the Respondent purported to disclose information as required by the 2018 Disclosure Order. Certain, but not all, of the disclosure required by the 2018 Disclosure Order was thereby provided. The Applicant established, however, that significant disclosure required by the 2018 Disclosure Order remained outstanding, as at the time of argument of this motion, including: three years of account statements for four of the Respondent’s business and personal accounts; credit card statements for the past three years of four of the Respondent’s credit cards; and three years of RRSP statements. Further, the Respondent has not produced any applications for credit made by him since June 2016 and has not produced his 2016 and 2017 personal and corporate income tax returns.

[34] The analysis presented by the Applicant deriving from the disclosure made by the Respondent pursuant to the 2018 Disclosure Order shows that the Respondent had significant cash flow in the period from 2016 to 2018, as reflected by deposits and withdrawals from his accounts. The Husband paid expenses for his vacations, travel and social outings. Nonetheless, the Respondent did not make any payments in support of the Applicant, notwithstanding the court Orders requiring him to do so.

C. Agreement on Amounts Outstanding Under Court Orders

[35] In the course of submissions, counsel agreed that the amount outstanding, owed by the Husband to the Wife under the Orders rendered to date, is $134,641.11, consisting of support arrears currently subject to enforcement by FRO in the amount of $92,752.67 (FRO Director’s Statement of Arrears dated September 28, 2018, Exhibit A to the affidavit of Tanille Jordan, sworn October 18, 2018) and $41,888.44 in costs that are not subject to enforcement by FRO.

[36] The support arrears of $92,752.67 and ongoing monthly support payments are being addressed by the Ontario Court of Justice in the Enforcement Proceeding, currently through monthly payments by the Respondent to the Applicant in accordance with the Temporary Default Order. They will continue to be addressed through the Enforcement Proceeding.

II. Analysis – Motion for Stay or Dismissal on Rule 1(8)

[37] The threshold issue raised by this Motion is whether the Wife has established a basis for the stay or dismissal of the Husband’s Motion to Change on the basis of Family Law Rule 1(8).

A. Applicable Rule and Principles

[38] The court has an inherent jurisdiction to make any order that it considers appropriate to address a party’s failure to respect the court process, including failure to comply with court orders: Hughes v. Hughes (2007), 85 O.R. (3d) 505 (S.C.J.) at para. 27; Levely v. Levely, 2013 ONSC 1026 at para. 11.

[39] Cases like this justify the statement of the obvious: parties are required to comply with Court Orders. Many courts have repeated and adopted, perhaps for its sheer clarity, the statement by Quinn J. in Gordon v. Starr (2007), 42 R.F.L. (6th) 366 (Ont. S.C.) at para. 23, that “an order is an order, not a suggestion.” Quinn J. spoke of the “offensiveness of allowing a party to obtain relief while in breach of a court order.” As Kelly J. wrote, in Purcaru v. Purcaru, 2010 ONSC 4031 at para. 76, it is “an affront to the administration of justice” to allow a party to pursue relief while in chronic, intentional breach of court orders.

[40] The Family Law Rules specify the consequences that the Court may impose upon a party’s failure to obey a Court Order. FLR 1(8) states:

1(8) Failure to Obey Order. – 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 … motion to change … 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) Any order postponing the trial or any other step in the case; …

[41] FLR 1(8) provides an operational, procedural mechanism by which the Court’s inherent jurisdiction to control its process is implemented in case of breach of court orders. These consequences, focusing in this Motion on the dismissal or stay of the Husband’s Motion to Change, require a balancing between competing interests: the Husband’s access to the Court to be heard on material changes in circumstances that he submits have occurred since the Final Order and would support a reduction in the obligations imposed by the Final Order; and the Wife’s entitlement to a remedy arising from the real and substantial harm caused to her by the Husband’s failure to provide her the financial support and entitlements mandated by the Court Orders. There is also, as noted, the overarching consideration of ensuring respect for the administration of justice through compliance with Court Orders.

[42] In Ablett v. Horzempa, 2011 ONCA 633 at para. 7, the Court of Appeal upheld a motion judge’s dismissal of a Motion to Change a final order for spousal support where the record before the motion judge demonstrated a “consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court” on the part of the party seeking the change. The Appeal Court stated that this remedy is available in cases of willful non-compliance, disregard for the court process and failure to comply or explain non-compliance on a basis that shows an intention to comply.

[43] In Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33 [Purcaru (C.A.)], the Court of Appeal upheld a trial judge’s decision, on motion brought at the start of trial, to strike a party’s pleadings on the basis of multiple, continuing breaches of Court Orders. The Appeal Court stated, at para. 5, that the trial judge was entitled to impose a remedy “that would provide a strong disincentive against breaching court orders” where there is consistent non-compliance that is neither explained nor remedied.

[44] The Court of Appeal emphasized in Kovachis v. Kovachis, 2013 ONCA 664, 367 D.L.R. (4th) 189 at paras. 34-36 that a motion judge must consider proportionality when deciding to order a remedy under FLR 1(8). As stated in Marcoccia v. Marcoccia, 2008 ONCA 866, 60 R.F.L. (6th) 1, the remedy of striking pleadings is “a serious one and should only be used in unusual cases.”

[45] The Applicant relies on a series of cases that have applied these principles to dismiss a Motion to Change on the basis of non-compliance with Court Orders, in accordance with FLR 1(8). For example, in Levely, Chappel J. applied the principles of Ablett to dismiss a Motion to Change in circumstances where the moving party was found to have deliberately breached court orders. I agree with the statement of Chappel J., at para. 13, that “[the] Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of family law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner.”

[46] Similarly, in Myers v. Myers, 2014 ONSC 1804, a party bringing a Motion to Change an order requiring payment of child and spousal support was found to be in breach of the order sought to be changed, substantially in arrears and, like the present case, subject to enforcement proceedings by the Director of FRO. The Court found that the party’s failure to comply with court orders was deliberate, wilful and blatant, in significant detriment to the parties for whose benefit the orders were rendered, and in disrespect of the court process. The Motion to Change was struck on the basis of FLR 1(8)(c).

B. Application to this Motion

[47] The legal principles applicable to the exercise of discretion to strike a party’s pleading under FLR 1(8) were summarized by the Divisional Court in Van v. Palombi, 2017 ONSC 2492 at paras 30-31:

1. Is there a triggering event justifying the striking of pleadings?
2. Is it appropriate to strike the pleadings in the circumstances of this case?
3. Are there other remedies in lieu of striking pleadings that might suffice?

[48] In application to the Wife’s motion to stay or to dismiss the Husband’s Motion to Change, my analysis must then consider: are the Husband’s breaches of Court Orders sufficient to trigger FLR 1(8); has the Husband attempted to remedy the breaches or provide a justifiable explanation or a path to compliance; what is the appropriate and proportional remedy, in all the circumstances, recognizing that the objective of the sanction is first to enforce compliance as a precondition of hearing the non-compliant party, reserving to only the most serious cases the elimination of the non-compliant party’s ability to be heard: Purcaru (C.A.), at para. 49.

Do the Husband’s Breaches of Orders Trigger FLR 1(8)?

[49] The Husband has failed to comply with the April 2016 Order, the June 2016 Order, the June 2016 Cost Order, the September 2016 Order, the Final Order, the 2017 Order and, indeed, the 2018 Disclosure Order. In total, seven Court Orders have not been obeyed.

[50] The Wife submits that by reason of the Husband’s breach of these Court Orders, she has endured significant hardship. She has been forced to be dependent on family members for housing and has incurred considerable debt because she is unable to meet her monthly expenses. She has gone without, when the purpose of the Orders was to provide her with the support that she was entitled to, by law, from the Respondent.

[51] The Applicant has established a series of breaches by the Respondent sufficient for the court to consider the orders listed in FLR 1(8).

Has the Non-Complying Party Explained or Attempted to Remedy the Breaches?

[52] The Husband submitted that his breaches resulted from two factors: error or procedural unfairness in the rendering of some or all of the Orders; and lack of finances resulting in an inability to comply with the financial terms of the Orders.

[53] The Husband’s submission that the Court Orders, or certain of them, were made in error or with lack of procedural fairness is immaterial and improper. The Husband did not appeal any of the Court Orders. The Husband did not, even at this time, seek to vary any of the Court Orders. The Husband cannot now seek to appeal these Orders in the guise of a Motion to Change: Bourgeois v. Bourgeois, 2018 ONSC 5915. The Husband cannot re-litigate a claim or an issue that he has already raised and lost because this would constitute an abuse of process: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (Ont. C.A.), rev’d on other grounds 2002 SCC 63, [2002] 3 S.C.R. 307.

[54] I do not accept the Husband’s submission that he lacked financial resources to comply with the Court Orders. Pawagi J. found, in the enforcement proceeding, that the Husband had the financial resources to pay the monthly spousal support ordered by the Final Order ($2,400) as well as a contribution toward arrears ($600) for a total monthly payment of $3,000. The Husband has paid this amount each month since January 2018. As such, there is a factual finding supported by the Respondent’s subsequent conduct that the Respondent had financial resources to make payments in support of the Applicant notwithstanding his denial.

[55] Further, the record filed by the Husband in the Motion to Change shows that he had the ability to make support payments. First, the Applicant has demonstrated that the Husband had considerable cash flow and funded significant lifestyle expenses for himself, including travel and social outings, during the time that he did not pay the Wife any of the ordered spousal support. The Husband’s pattern of spending and depositing revenue from his business operations shows that he had money to pay the Applicant support. Second, the Husband’s evidence that his income has fallen since the rendering of the Final Order, including through decline in the revenues of Solid Source Tire Inc., implies that he had higher income during the years in which he failed to pay any support to the Applicant as compared to the current year, in which he is paying $3,000 each month.

[56] I find that the Respondent chose to disobey the Orders requiring him to pay spousal support, not because of a lack of money, but through willful non-compliance. This finding is supported by an analysis of those elements of the Court Orders that did not involve the payment of money. The Respondent did not comply with the disclosure ordered by the April 2016 Order, the transfer of shares in Solid Source Tire Inc. ordered by the Final Order and by the 2017 Order, the designation of the Wife as a beneficiary under his life insurance policy ordered by the Final Order, and the disclosure ordered by the 2018 Disclosure Order. Indeed, the Husband’s breach of his disclosure obligations is in relation to Orders issued both before and after the Final Order, spanning a period from April 2016 to present. The Respondent did not remedy these disclosure breaches even when confronted with the Wife’s motion to stay or dismiss his Motion to Change. He failed to explain his non-compliance on a basis that establishes an intention to comply.

[57] Compliance with these conduct-related Orders did not require money, but rather a willingness to obey Court Orders.

[58] In submitting that I should nevertheless allow him to proceed with the Motion to Change, the Husband relies principally on the decision of Monahan J. in McSkimming v. Schmuck, 2018 ONSC 4067. There, the Court declined to strike a party’s Motion to Change, notwithstanding the breach of court orders, where the moving party failed to establish that there had been a “consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court on the part of the [non-compliant] party”: paras 25, 29, citing Ablett at para. 7.

[59] The facts in McSkimming are distinguishable from those in the present motion. In McSkimming, the Husband was found to have paid some, but not all, of the spousal support required to be paid in 2015 and 2016, and had paid the full monthly spousal support for the two years leading to the return of his wife’s motion to strike his Motion to Change. He had done so notwithstanding the fact that he had assigned into bankruptcy, which had made it more difficult for him to borrow funds to satisfy his support obligations.

[60] Unlike the facts in McSkimming, the Husband in this case did not make any partial payments, or payments on account of his ordered obligations. In the present case, the Husband did not pay the Wife any spousal support in the period from registration of the SDO in September 2016 until the Temporary Default Order was made in January 2018 (apart from a single payment of $1,000 made in close proximity to the first hearing in the Enforcement Proceeding).

[61] In these circumstances, I have concluded that the Respondent has engaged in a “consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court.” The Respondent has not provided an explanation for the non-compliance that establishes that he had an intention to comply. As such, I have determined that the Applicant is entitled to a remedy under FLR 1(8).

What is the Appropriate and Proportional Remedy?

[62] While I recognize that FLR 1(8)(b) and (c) provide authority for the dismissal of a Motion to Change where there is breach of Court Orders, I am mindful that this remedy must be employed as a “drastic remedy of last resort”: Ablett at para. 7. Dismissing the Motion to Change would deny the Husband his right to be heard on his motion, without giving him a way to rehabilitate his non-compliance.

[63] The record shows that the Husband has been in compliance with the Temporary Default Order rendered in the Enforcement Proceeding in January 2018, allowing for the potential that he may now be prepared to comply with Orders pertaining to his obligations to the Applicant. The Husband’s recent compliance makes this case different from those in which the Court concludes that it is simply not realistic to consider that the non-compliant party will comply now, thereby giving rise to an order dismissing the proceedings as opposed to a stay: Bourassa v. Magee, 2014 ONCJ 393, 49 R.F.L. (7th) 442.

[64] I have decided to follow the approach taken in those cases where the non-compliant party is provided with an opportunity to cure the breaches that have been identified and, once the breaches are cured, be heard on the issue that the non-compliant party seeks to advance. In Sgro-Di Giosaffatte v. Di Giosaffette at para. 10, Rogers J. ordered that the non-compliant party seeking to argue a Motion to Change would first be required to pay the outstanding spousal support, equalization payment and costs, but would then be permitted to proceed. A similar result is seen in Levely; Ferguson v. Charlton, 2008 ONCJ 1; and Maida v. Maida.

[65] Requiring the Respondent to comply with those elements of the Court Orders that are not being addressed by the Enforcement Proceeding before being heard on his Motion to Change provides a remedy that is proportional to the Respondent’s breach, and provides the Respondent an opportunity to be heard upon compliance.

[66] The parties agree that the Respondent’s current breach in payments to the Applicant under the Court Orders is $134,641.11, consisting of $92,752.67 that is being addressed by the Ontario Court of Justice in the Enforcement Proceeding and its Temporary Default Order, and the amount of $41,888.44 that is not subject to enforcement by FRO. There are also conduct-related Orders that the Respondent has not complied with.

[67] The Ontario Court of Justice will, in the Enforcement Proceeding, continue to enforce the Respondent’s payment to the Applicant of the $92,752.67, and related charges. That Court can address any sanctions that might be required should the Husband fail to comply with the Temporary Default Order, or any other Order that might be rendered in the Enforcement Proceeding.

[68] The Respondent’s Motion to Change will be stayed until payment of the amount of $41,888.44 and satisfaction of the conduct-related Orders that have been identified, as detailed later in this Endorsement. Once these terms have been complied with, the Respondent will be heard on his Motion to Change.

Summary

[69] I am satisfied that the Respondent has engaged in a history of non-compliance of Court Orders, showing a disregard for the process of the Court and the entitlements of the Applicant Wife. The Respondent did not explain the non-compliance on a basis that established an intention to comply, and made no attempt to bring himself into compliance until subjected to the Enforcement Proceeding. The Husband chose not to avail himself of those opportunities available for meaningful participation in this case until the several Orders and the Final Order were made by this Court and after a Temporary Default Order was made by the Ontario Court of Justice.

[70] In balancing between the right of the Applicant to the benefit of the Court Orders rendered in her favour and the Respondent’s plea to be heard on the Motion to Change, the Applicant shall prevail. The Respondent must comply with Court Orders. He will be deprived of the right to advance the Motion to Change until he does so. He is the author of any harshness caused by this delay because of his failure to comply with the Court Orders. Any audience sought by the Husband that may be delayed in the meantime, or lost through non-compliance, will be by his own doing.

[71] The Respondent’s Motion to Change shall be stayed until he complies with those elements of the Court Orders that have not already been addressed by the Enforcement Proceeding, being payment of the amount of $41,888.44 and satisfaction of the conduct-related Orders that have been identified.

III. Analysis – Motion for Summary Dismissal

[72] To proceed with determination of the Applicant’s motion for summary dismissal of the Motion to Change would be inconsistent with my determination that the Motion to Change is stayed. The Applicant’s motion for summary dismissal of the Respondent’s Motion to Change is thereby dismissed as premature, without substantive determination, and without prejudice to its reinstatement, on the current record and any additional record that the Applicant may choose to file, upon the Respondent’s satisfaction of the terms of the stay of the Motion to Change.

IV. Analysis – Motion for Security for Costs

[73] The Applicant sought an order that the Respondent post security for costs as a precondition to proceeding with his Motion to Change. The amount of the security for costs proposed by the Applicant is the amount owed by the Respondent to the Applicant that is not addressed by the Enforcement Proceeding: $41,888.44.

[74] I have determined that the Motion to Change is stayed until this amount is paid. This renders redundant the security for costs sought by the Applicant. The motion brought by the Applicant for security for costs is thereby dismissed as moot.

V. Disposition

[75] I order that:

a) the Respondent’s Motion to Change shall be stayed until the Respondent satisfies the Court, by means of affidavit with documentary proof annexed as exhibits, of the following: (i) The Respondent has paid the Applicant the amount of $41,888.44 that remains outstanding from previous Court Orders and is not subject to enforcement by the Family Responsibility Office; (ii) The Respondent is maintaining life insurance coverage in the amount of $150,000 for the benefit of the Applicant during the duration of his spousal support obligations, with the Applicant designated as the irrevocable beneficiary of this life insurance policy, as required by the Final Order of Paisley J. dated May 26, 2017; (iii) The Respondent has transferred and vested in the Applicant his shares in Solid Source Tire & Wheel Inc., as required by the Final Order of Paisley J. dated May 26, 2017 and the Order of Hood J. dated September 11, 2017; (iv) The Respondent has complied fully with the disclosure terms set out in the Order of Paisley J. dated September 24, 2018. b) The Applicant’s motion for summary dismissal of the Motion to Change is dismissed as premature, without substantive determination, and without prejudice to its reinstatement, on the current record and any additional record that the Applicant may be advised to file, upon the Respondent’s satisfaction of the terms of the stay of the Motion to Change. c) The Applicant’s motion for security for costs is dismissed as moot.

VI. Costs

[76] I encourage the parties to discuss and agree on the issue of costs. If they are not able to agree on the issue of costs, the Applicant may deliver to me written submissions on costs, of no more than three pages in length (plus her cost outline and any offer to settle) within 15 days of the date of this Endorsement. The Respondent may then deliver to me his written submissions on costs, of a similar length, within 30 days of the date of this Endorsement. I will consider the written submissions and release my decision on the issue of costs.

Sanfilippo J. Date: November 15, 2018