Nadia C. Dalla Bona v. Yamil A. Lucas

COURT FILE NO.: FS-23-00037649-0000 DATE: 20240811 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Nadia C. Dalla Bona Applicant – and – Yamil A. Lucas Respondent

Counsel: Emma Compeau, for the Applicant Self-represented

HEARD: July 16, 2024

AMENDED REASONS FOR DECISION

Mathen J.

INTRODUCTION

[1] The Applicant, Nadia Dalla Bona (“the mother”), has brought a motion pursuant to Rule 1(8) of the Family Law Rules (“FLRs”), seeking to strike the Respondent’s Answer, and seeking a penalty to be paid by him, on account of his wilful breach of Court orders.

[2] Specifically, the mother seeks the following:

a. that the Respondent, Yamil Alen Lucas (“the father”) pay to her a penalty of $15,000 due to his failure to obey the Orders of Justice Des Rosiers dated February 16, 2024 and Justice Vella dated November 28, 2023; b. that the father’s Answer dated January 30, 2024, be struck due to his failure to obey the above-noted Orders; c. that this matter proceed to an uncontested trial in writing; d. in the alternative to [b], that the father not be entitled to any further Order from the Court pending his compliance with the above-noted Orders; and e. costs of this motion on a full indemnity basis.

Issues to be Determined

[3] The issues for me to decide on this motion are:

a. Is the father in breach of a court order(s)? b. If the answer to (a) is yes, should I exercise my discretion under Rule 1(8) of the FLRs to strike his Answer, order him to pay a penalty, pay costs and/or allow the mother to proceed with an uncontested trial in writing?

Brief Conclusion

[4] I find that the father has wilfully breached two existing court orders. I decline to exercise my discretion to strike his Answer. However, I have ordered the father to pay a penalty of $5,000, and an ongoing daily penalty of $200 a day should he persist in incomplete disclosure and given him one last opportunity to rectify his breaches. If within thirty days the father does not rectify his breaches of the Court orders as I describe below, the mother may proceed with an uncontested trial in writing on all issues, other than parenting, and the father shall not be permitted to participate in such proceedings. Until the father rectifies his breaches, he may not seek any relief from the Court.

[5] Relying on the recent changes to subrule 1(8) of the FLRs, the mother asks me to impose a monetary penalty of $15,000 on the father. Subrule 1(8) has a new clause, (a.1), which grants this Court the power to make “an order to pay an amount to a party or into court as a penalty or fine”.

[6] In numerous cases, this Court has imposed penalties on litigants who were in serial breach of court orders and the FLRs. The recent amendments to Rule 1(8)(a.1) are a tool to make family law proceedings before this Court fairer and more efficient. Facing unresponsive, indifferent or defiant parties, Rule 1(8)(a.1) provides the Court with additional means to hold them accountable.

[7] The father has failed to comply with routine orders intended to move this matter forward. He made oral submissions that “he was in over his head”, and “unable to cope.” Despite being given an opportunity to provide the Court with a plan or ideas to move this case forward, the father did not have any.

[8] I believe that the clear message of Rule 1(8)(a.1) is that, in the face of blatant or chronic disregard of the rules, judges should utilize all remedies possible to maintain the integrity and coherence of the family law system.

Background Facts

[9] The parties, who never married, started living together in 2014 and separated for a final time on January 10, 2023. The two children of the marriage are, respectively, 7 and 8 years old. The mother resides with the children at the parties’ former residence located at 346 Caledonia Road, Unit B, Toronto (“346 Caledonia”).

[10] The mother says during the relationship the father was the “main breadwinner”. She describes their lifestyle as “comfortable”. The father is self-employed in the home improvement industry. In 2022, the father’s T1 lists his Line 15000 income at $42,175. According to the mother, however, the father earns substantial, unreported cash income. Trying to determine how much has necessitated multiple, futile disclosure requests.

[11] The mother deposes that she was employed as an executive assistant at a company called Brooks Restoration. After being terminated in May 2023, she received income pursuant to a settlement. That income ended in April 2024. Presently, she owns a company named Bank Studios. Her new business is fledgling with a projected annual income of approximately $9,000. (The mother is not seeking spousal support on this motion.)

[12] The mother describes the parties’ relationship as fraught with conflict due to, in her words, “the [f]ather’s abusive behaviour, emotional instability and substance use.” Because of the father’s substance abuse, she says, he “delegated most parenting responsibilities” to her. The father objected to this general characterization and told the court that he loves his children.

[13] The mother states that the father has a criminal record which she has been unable to obtain – one of the many documents for which she has sought disclosure. The mother has personal knowledge of one criminal charge of driving under the influence.

[14] The mother argues that because of the father’s failure to pay an amount previously agreed to for rent ($3,400), she and the children are currently facing an eviction from 346 Caledonia.

[15] Due to her concern for the children’s safety the mother successfully sought to have the father’s parenting time be supervised. In her view, the father often declines to exercise that time. The father claims that the mother is deliberately hindering his access to the children. Based on the record, I do not find this to be true. While the mother has objected to some of the father’s parenting requests, she has accepted others and endeavoured to have his parenting time continue.

[16] As proof that the father has access to more resources than he claims, the mother pointed out that he vacationed in Punta Cana during the winter of 2023-2024. At the hearing, the father explained that this holiday was paid for by a family member. Yet, he also said that he had no family assistance to meet some of his financial obligations. While I cannot definitively conclude that the father could obtain funds from his family to meet these obligations, I nevertheless note an incongruity to his position.

LITIGATION HISTORY

[17] Since November 2023, there have been three court orders in this matter. Taken together, they reveal a pattern of dilatory participation by the father. He has been subject to cautions from four judges of this Court including me.

Order of Justice Kraft – November 6, 2023

[18] The first order was issued by Justice Kraft in a To Be Spoken To proceeding on the mother’s urgent motion to formalize the parties’ de facto parenting arrangements.

[19] Justice Kraft noted the mother’s repeated, unsuccessful attempts at communication. In her Endorsement, Kraft, J. noted that the father had previously agreed to pay the mother’s monthly rent of $3,400 per month. However, beginning in September 2023, the father unilaterally decreased those payments to $1500 and then $1000 per month. (The mother suggests this was in retaliation for her Application filed in August 2023. I make no finding as to the father’s motive.)

[20] The father filed no materials for the November 2023 TBST appearance. But he did appear, leading Justice Kraft to comment that “he understands the necessity of his participation in the proceeding.”

[21] Justice Kraft made an interim, without prejudice order regarding parenting, pick-up and drop off, and attendance at the children’s school; and scheduled an urgent case conference for three weeks later.

[22] According to the mother, the father had supervised visits with his children on the dates specified in Justice Kraft’s order, but left halfway through each one.

Order of Justice Vella – November 28, 2023

[23] The parties attended an Urgent Case Conference before Justice Vella on November 28, 2023. The father failed to appear in person and, instead, phone in. He served incomplete materials an hour before the conference. His former counsel appeared as agent.

[24] On consent, Justice Vella ordered the father to pay the mother uncharacterized monthly support of $2,327 for three months. The amount of support was not intended to create a status quo financial arrangement, but to reflect the reality that the father had not provided proper financial disclosure. Justice Vella also granted leave to the mother to enable her to bring motions for child and/or spousal support. She directed that Requests for Information be exchanged by December 20, 2023. The father was to file his Answer and Financial Statement along with back-up documents by January 31, 2024, along with a proposed detailed parenting schedule. Leave to bring motions on parenting issues was granted, with Justice Kraft’s previous order remaining in effect.

[25] Justice Vella also ordered costs of $2,000 against the Respondent, citing: his failure to appear in person; his extremely late materials; his incomplete sworn financial statement; his failure to file an Answer; and, overall, his “pattern [of] either not filing materials or filing them too late to be of any assistance.” Justice Vella noted that these actions had “hampered the effectiveness of [the] urgent case conference” requiring yet another one to be scheduled.

[26] According to the mother, the father “did not deliver a [complete] response to the mother’s Request for Disclosure, did not pay costs and did not deliver a parenting plan well in advance of the next Case Conference scheduled for February 16, 2024”. The father did, though, file an Answer on January 30, 2024. The mother describes the Answer as follows:

[The Respondent sought] an Order that he may travel with the children without the Applicant’s consent, an Order dispensing with the Applicant’s consent for applying for passports for the children, and Orders that the Applicant pay the Respondent child and spousal support, inter alia.

[27] The Applicant further stated that:

Respondent’s sworn financial statement claims income of only $42,175, entirely inconsistent with the family’s lifestyle. Rent at 346 Caledonia alone amounts to $40,800 per year.

Order of Justice Des Rosiers – February 16, 2024

[28] The next case conference was before Justice Des Rosiers on February 16, 2024. Her Endorsement directed the father to deliver a Request for Information to the mother by February 23, 2024; continued the uncharacterized support payments of $2,237 per month ordered by Justice Vella; ordered parenting time on three occasions in March 2024; and continued earlier pick up and drop off instructions. At the father’s expense, his parenting time was to be supervised by Brayden Supervision Services. Justice Des Rosiers ordered the father’s parenting time to be reviewed in April, 2024 and she permitted the father to file his Financial Statement without notices of assessments.

[29] Significantly, Justice Des Rosiers ordered the father to “comply with the Order of Justice Vella dated November 28, 2023 within 45 days of this Order, failing which, the Applicant may bring a motion pursuant to Rule 1(8) of the Family Law Rules.” Forty-five days from Justice Des Rosier’s order was April 19, 2024.

[30] Justice Des Rosiers also ordered the Respondent to pay additional costs of $1000.

[31] The mother filed voluminous and detailed materials to establish that the father failed to deliver the disclosure sought by her. As noted in paragraph 19 of her factum:

To date, the only financial disclosure that the Respondent has delivered are two incomplete Financial Statements, his Notices of Assessment and T1 summaries from 2019 to 2022, limited invoices from October 2023 to January 2024, incomplete bank statements from one account only being his Scotia Chequing Account *5480 which demonstrate deposits of $235,599.72 in an 11 month period of time, an Equifax credit report, his lease agreement, and one screen shot of text messages between the parties.

In contrast, the mother states, she responded to the father’s Request for Information and came to the motion before me “with clean hands”.

[32] The father did not pay the support as ordered and, the mother alleges, is in arrears of $9,708.

[33] On February 23, 2024, the father served a Notice of Change in Representation. He is now self-represented.

REQUESTED RELIEF AND ANALYSIS

[34] Paragraph 21 of the Applicant’s factum is a helpful summation of the current state of affairs:

Without the Respondent’s disclosure, this matter cannot meaningfully move forward. The Applicant cannot address the claims made in the Respondent’s Answer. Without child support, the Applicant cannot maintain rental payments. The children are being prejudiced by the Respondent’s conduct and breaches. The Respondent has had ample opportunity to comply with court Orders and has been advised of the necessity of his participation in this proceeding by three Judges. The Applicant has incurred costs to move this matter forward, seek support, and secure the children’s best interests.

[35] The mother characterizes the father’s failure to comply with various court orders as “wilful and egregious”. I find that the father was given multiple opportunities to participate in these proceedings in a productive way. While he has not been completely absent (a point taken up later in these reasons), his behaviour nonetheless has been unhelpful and unproductive.

Structure of a Rule 1(8) claim

[36] Rule 2(2) of the Family Law Rules provides that the primary objective of the Rules is to enable the court to deal with cases justly. Rule 2(3) states that dealing with a case justly includes:

i. Ensuring that the procedure is fair to all parties; ii. Saving expense and time; iii. Dealing with the case in ways that are appropriate to its importance and complexity; and iv. Giving appropriate court resources to the case while taking account of the need to give resources to other cases…

In Ferguson v Charlton, 2008 ONCJ 1, Spence J. outlined a three-step process for the court to follow when faced with a motion under Rule 1(8):

1. Determine whether there is a triggering event.
2. If a triggering event exists, consider whether the court should exercise its discretion, by sanctioning that party.
3. If the court determines it will not exercise its discretion in favour of a non-compliant party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).

Ferguson v. Charlton, 2008 ONCJ 1, para. 64; and Myers v. Myers, 2014 ONSC 1804, para. 29.

[37] As discussed below, I find that the father’s numerous breaches constitute a triggering event. I have determined that, on some of the requested heads of relief, I will not exercise my discretion in favour of the (non-compliant) father; and will grant several remedies.

[38] The mother further argues at paragraph 27 of her Factum: “On a motion pursuant to Rule 1(8) in the case of outstanding disclosure, once breaches have been determined, the Court shall consider the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute, and the context and complexity of the issues in dispute” (citing Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, at para. 45).

[39] I find that the disclosure requested in this case is not particularly complex, but the incidents of non-disclosure have had significant negative effects on the proceedings.

Request that I find the father in breach

[40] The mother requested that I find the father in breach of various provisions of the Vella, J. and Des Rosiers, J. orders, described above.

[41] At the hearing of this motion, the father did not dispute that he was in breach of the two court orders. He said that his business suffered a downturn leaving him with little disposable income. He gave a half-hearted, cost-related explanation for no longer engaging Brayden Supervision Services of Brayden. He said he loves his children but did not deny that he has failed to exercise all of his parenting time. He stated that he lacks a computer, is “not good with tech” and does not have anyone to assist him. The father also blamed previous counsel for his non-responsiveness.

[42] I find that the father has failed to offer a reasonable explanation or justification for his continued breaches of various orders of this Court. In particular, I am not persuaded that the father is as technologically unsophisticated as he claims. The father did not dispute that he has social media accounts that he uses regularly, as well as a device on which he sends texts. I find it implausible that the father cannot figure out the tech necessary to fill out forms including electronic ones, or download (or upload) documents.

[43] I am persuaded on a balance of probabilities that the father is in breach of: Paragraphs 3 (respond to Request for Information within 45 days), 4 (comply with the order of Vella, J.), 5 (child support) and 11 (costs award) of the order of Justice Des Rosiers dated February 16, 2024.

[44] The mother requests that I also find the father in breach of Justice Vella’s order. I find this unnecessary, given that: (a) Justice Des Rosiers included in her order a blanket directive to comply with Justice Vella’s order; (b) the mother included this latter directive as part of her requested order; and (c) I have found the father to be in breach of that order. For clarity, however, I will note the father’s breach of Justice Vella’s costs order.

Request that I strike the father’s January 30, 2024, Answer

[45] The mother seeks that the father’s Answer, dated January 30, 2024 be struck, pursuant to Rule 1(8)(c) of the FLRs.

[46] The test to strike pleadings is similar to the test for determining any remedy under Rule 1(8):

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

McCallum v. Fagan, 2023 ONSC 4228 at para 30.

[47] In considering whether other remedies would be appropriate, I consider: the primary objective of the FLRs to deal with cases justly (Diciaula v. Mastrogiacomo, 2019 ONSC 2823, at para. 33); the nature of the responding party’s failure to comply; whether the situation is exceptional enough to merit striking out an answer or pleadings on a first motion (Purcaru v. Purcaru, 2010 ONCA 92); and the need to take “special care... where the interests of children are at issue” (Purcaru, ibid).

[48] The mother cites numerous cases where this Court has struck pleadings due to a party’s failure to make proper financial disclosure, pay child support or otherwise comply with the Rules including: Manchanda v. Tethi, 2016 ONCA 909; Lamonthe v. Ellis, 2021 ONSC 4883.

[49] I agree that I have the power to strike the father’s Answer in this case, because of the triggering event noted at paragraph 37 of these reasons.

[50] Nevertheless, for the following reasons I decline to strike the father’s Answer:

a. The father complied with the court-imposed deadline for him to provide his Answer. b. The Answer contains statements about parenting issues which in my view should not be struck. c. Striking the father’s pleadings would not assist this Court in reaching a just determination of the issues. The mother requires disclosure in order to determine the father’s financial position – something that is critical when, as here, the father is self-employed. It is my hope that a remedy of costs, an order to comply and a specific warning that adverse inferences will be drawn should the father persist in his non-compliance, will inspire him to participate more productively. d. The mother has proposed an alternative to this head of relief, discussed below, which I find to be more appropriate.

Request in the alternative: no further orders

[51] The mother requests that, in the alternative to striking out the father’s pleadings, I make an order that he shall not be entitled to further relief from this Court pending his compliance with the orders issued by Vella J. and Des Rosiers J.

[52] I find such an order to be warranted. The father’s failure to participate productively has wasted both the mother’s resources and this Court’s time. It would be inappropriate to permit the father to seek the benefit of relief from a Court against which he stands is in serial breach.

Request that I permit the mother to move to an uncontested trial

[53] Justice Des Rosiers’ order of February 16, 2024, stated that, should the father fail within 45 days to comply with the November 2023 order of Justice Vella, “the Applicant may bring a motion pursuant to Rule 1(8) of the Family Law Rules.” The order was made on consent of the parties.

[54] The mother argues that Justice Des Rosiers implicitly permitted her to bring a motion for any relief encompassed under Rule 1(8). I agree with this interpretation.

[55] I have already declined to strike the father’s Answer. For similar reasons, I find that it would not be appropriate on this motion to move directly to an uncontested trial. I am hopeful that firmer financial consequences imposed on the father may spur him to finally participate in these proceedings. That would ultimately assist this Court in reaching a just resolution.

[56] In addition, courts in Ontario have been cautious about permitting uncontested trials in family law proceedings in which parenting and child support issues are implicated: Purcaru, supra citing King v. Mongrain (2009), 2009 ONCA 486; Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.) Absent evidence that a parent is absolutely uninterested in proceeding, it is preferable to keep them involved in case they can offer the court useful information.

[57] The father has made some arguments regarding parenting and thus cannot be said to have completely absented himself from the consideration of that issue.

[58] During the motion, counsel for the mother agreed to modify her requested relief under this head to an uncontested trial solely on financial issues.

[59] Based on the ample evidence of the father’s failure to engage productively in these proceedings, I find that an uncontested trial may become necessary. However, on an initial motion such as this one, it is appropriate to provide the father with one final opportunity to produce the requested disclosure. I believe this opportunity is important it will put the trial judge in a far superior position to decide financial issues.

Request that I assign a $15,000 penalty

[60] Under Rule 1(8)(a.1), in the event of a party’s failure to obey a court Order the Court may order that party to pay a penalty or fine. The mother seeks a penalty of $15,000 to be imposed on the father.

[61] Numerous prior decisions of this Court had concluded that this sort of power was already inherent in the remedies available under Rule 1(8). Judges have imposed daily financial penalties for offending parties who remained in breach of the Rules: Granofsky v. Lambersky, 2019 ONSC 3251 ($500); Mantella v. Mantella, 2009 ONCA 194 ($2,500); DiPoce v. DiPoce, 2022 ONSC 2099 ($2,500).

[62] Explaining why a lump sum penalty would be preferable to a daily one, the mother’s counsel offered the following:

a. The costs awards to date have had little effect. b. The mother’s current bill of costs indicates full recovery of $24,689; substantial indemnity recovery of $19,374.84; and partial indemnity recovery of $15,038.50. c. The father is in arrears of $9,225 in unpaid uncharacterized support and $3,000 in unpaid costs. d. As a result of the father’s breaches, the mother and children are facing eviction from their home. e. What financial records there are indicate that the father has access to funds. Those financial records indicate transactions totalling $235,599.72 in his bank account over an 11-month span (the father says that these amounts are largely business transactions and do not represent funds available to him) f. The above-noted circumstances make it appropriate to use the newly explicit power granted to this Court to order a penalty. g. Given the various detrimental financial effects on the mother, $15,000 is a proportionate penalty.

[63] I cannot conclude whether the mother’s pending eviction from her apartment is due wholly or in part to the father’s breaches. For example, I lack the facts to determine whether and how much the mother might reasonably be expected to contribute to her rent.

[64] I also am not sure that a lump sum penalty will ‘grab the father’s attention’ any more than the prior costs awards.

[65] At the same time, Rule 1(8)(a.1) recognizes the importance of safeguarding the Court’s authority. Essentially, Rule 1(8)(a.1) grants the power to impose sanctions. The appropriateness of a sanction is not linked to a subject’s willingness to submit to it or likely attempts to evade it.

[66] I find that this is an appropriate case for a penalty under Rule 1(8)(a.1). I reiterate my observations that the father has failed to participate productively in these proceedings. That failure has negatively impacted the mother. In addition, it has wasted the time and resources of this Court.

[67] The next question concerns the appropriate quantum of the penalty. This is not an exact science. Every case will have different factors.

[68] In this case, I rely on the following:

a. The matter has been before the Court for less than a year; b. While the father’s behaviour has been unacceptable, I do not find it to be defiant; c. While the mother quite reasonably draws my attention to the extra costs she has endured, I think it better to keep the question of costs separate from penalties or fines. Nothing about Rule 1(8)(a.1) indicates that it should supersede the Court’s pre-existing authority to award costs; d. I am persuaded, on the material before me, that the father has the ability to pay a sanction of several thousand dollars.

[69] In the circumstances, I find it appropriate to impose a penalty of $5,000. This penalty expresses this Court’s disapprobation of the father’s behaviour to date. I will pair this penalty, to be paid forthwith, with other relief imposing a daily financial penalty should the Respondent continue to be in breach.

Costs

[70] The mother seeks costs for this motion. I find that she has substantially prevailed in the relief that she sought from this Court. In addition, on July 3, 2024, she served and filed an offer to settle that was less generous to her than my decision. I find it appropriate to award the Applicant $9,050.73 which represents a full recovery of her costs. My decision takes into account the Applicant’s offer to settle, subrule 18(14) of the Family Law Rules concerning the cost consequences of failing to accept an offer, and the Respondent’s unproductive posture throughout these proceedings.

ORDER

[71] In conclusion, I make the following order:

a. I declare the Respondent Yamil Alen Lucas in breach of following paragraphs of the order of Justice Des Rosiers dated February 16, 2024: 3 (respond to Request for Information within 45 days), 4 (comply with the order of Vella, J.), 5 (child support) and 11 (costs award). b. I declare the Respondent Yamil Alen Lucas in breach of the costs award made by Justice Vella on November 28, 2024. c. Within sixty days of this order, the Respondent Yamil Alen Lucas shall pay to the Applicant Nadia Conchetta Dalla Bona a penalty of $5,000. d. Within thirty days of this Order, the Respondent Yamil Alen Lucas shall pay the costs awards issued by Justice Vella and Justice Derosiers. e. Within thirty days of this order, the Respondent Yamil Alen Lucas shall provide to the Applicant, and shall file with this Court, his answers to the Applicant’s disclosure requests. If he fails to provide any of the outstanding disclosure requested, he shall serve an affidavit setting out what steps he has taken to obtain the disclosure and the anticipated date of service. f. For every day that the Respondent fails to comply with subparagraph (e) above, he shall pay a penalty to the Applicant in the amount of $200 per day. g. Should the Respondent fail to provide the requested disclosure within thirty days, the Applicant may bring a motion for an uncontested trial on financial issues. The Applicant shall seek directions from the Court as to how such a trial will proceed. The judge hearing that motion is entitled to draw an adverse inference from the Respondent’s continued failure to participate productively in these proceedings. h. Within sixty days, the Respondent shall pay costs of this motion to the Applicant in the sum of $9,050.73 inclusive of HST.

[72] The Respondent may not seek further relief from this Court until he has complied with subparagraphs c, d, e, f, g and h of this order.

Mathen J.

Released: August 11, 2024

COURT FILE NO.: FS-23-00037649-0000 DATE: 20240811 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Nadia C. Dalla Bona Applicant – and – Yamil A Lucas Respondent

REASONS FOR JUDGMENT Mathen J. Released: August 11, 2024