Toronto D45285/08
DATE: 2012 01 16
Citation: Savion v. Savion, 2012 ONCJ 307
ONTARIO COURT OF JUSTICE
BETWEEN;
ELENA SAVION
Applicant
AND –
DAVID SAVION
Respondent
Before Justice Curtis
Heard on 15 August, and 15 December 2011
Endorsement released on 16 January 2012
Glenda Perry.............................................. counsel for the Applicant
Avy Ben-Zvi ........................................... counsel for the Respondent
CURTIS, J.:
- The mother brought a motion regarding the father’s claims in this case:
a. To strike his pleadings and proceed unopposed under R. 13(17)(b), R. 14(23), R. 19(10).4 and/or s. 24(a) of the Child Support Guidelines;
b. To dismiss his claims under R. 1(8), R. 13(17)(a), R. 14(23)(a), and/or R. 19(10).4; or,
c. To stay his claims under Courts of Justice Act, s. 106.
The motion is based on the father’s failure to comply with the consent disclosure order of 22 June 2011, and the disclosure requirements of s. 21 of the Child Support Guidelines.
The mother brought this motion returnable on 18 April 2011, claiming a variety of relief, including an order that the father deliver a new financial statement, and an order that the court dismiss the father’s claims or stay them until proper disclosure was provided.
Both parents have been represented by lawyers throughout this case. The mother has been represented by Ms. Perry since at least 20 January 2011 when her application was issued. The father has been represented by Mr. Ben-Zvi since at least 18 April 2011 when the lawyer appeared in court with him.
The father is a self-employed locksmith who receives income in cash. He is not a T4-receiving employee.
The mother made a detailed written request for the disclosure required in s. 21 of the Child Support Guidelines by her lawyer’s letter dated 15 February 2011, and inserting the full text of that section into the body of the letter. The mother sent a further reminder of the disclosure required in a letter to the father’s lawyer dated 21 March 2011. In addition, there was a further very specific and detailed written request about disclosure in the mother’s case conference brief for the case conference scheduled for 22 June 2011.
Some disclosure was provided. There were incomplete tax returns, too few tax returns, one notice of assessment, and one profit and loss statement provided. Accounts receivables lists were not provided. The business cheque register was not provided. The VISA statements were not provided in full. The full tax returns and notices of assessment required were not provided. Some documents provided included redacted portions. Some documents provided were incomplete.
The motion to strike, dismiss, or stay regarding the disclosure was not argued on 18 April 2011, nor was it argued on the next court date 22 June 2011. On 18 April 2011 the court heard a contested motion regarding child support and access, temporary orders were made re child support and access, oral reasons were given, and costs were reserved. The father did not file his material in advance of the motion, so the contested matters included his request to file that day in open court (which request was granted).
The motion to strike, dismiss, or stay regarding the disclosure was adjourned to 22 June 2011. At the case conference on 22 June 2011, the court made a consent disclosure order, requiring itemized disclosure to be delivered by 22 July 2011. The father had not prepared a case conference brief for this case conference. He prepared his case conference brief at court, and served the mother at court with the brief at 11.50 a.m., and then filed it. The costs of the motion on 18 April 2011 had been reserved and were further reserved to the motion date of 15 August 2011. On 22 June 2011, costs of the case conference were awarded to the mother, fixed at $3,000 and to be paid by 30 September 2011.
At the case conference there was a specific endorsement dealing with the father’s conduct of the litigation:
“One of the purposes of costs is to change behaviour. The conduct of the father in this case cannot continue.”
The motion to strike, dismiss, or stay regarding the disclosure was argued on 15 August and 15 December 2011. The lawyers were offered dates to complete the motion in September and November, but the lawyers were not available.
When the motion to strike, dismiss, or stay regarding the disclosure was heard, on both 15 August and 15 December 2011, the father was in default of the consent disclosure order made 22 June 2011. On 15 December 2011 when the motion was completed, the father was still in default of the consent disclosure and was also in default of the costs order made 15 August 2011.
Section 21 of the Child Support Guidelines is very detailed and very specific about the disclosure that is required. The consent order of 22 June 2011 was also very specific about the disclosure required.
Disclosure is always important in family law cases. It is required by the Family Law Rules and the Child Support Guidelines, and by a considerable, and extensive body of case law. Disclosure is particularly important in this case, where the father is not a T4-receiving employee, where the mother alleges that there is a substantial cash component to the father’s income, and where she seeks to impute income to the father. Failure to make disclosure frustrates the court’s ability to determine or impute the correct income to the father for child support purposes, and interferes with the court’s ability to order the proper amount of child support.
The father did not ask for more time to produce the material ordered. He did not even allege that he had produced everything, or that he had produced all that he had. Instead, his defence was that he may not have completely followed the rules, but that it would be unjust and unfair to strike his pleadings. He said that the rules could be bent, that he had not had enough time, and that he had tried his best.
The father could’ve made this motion to strike, dismiss, or stay regarding the disclosure go away by complying with the disclosure order and paying the costs.
The father was given a very long period of time in which to make the required disclosure. The first request was in February 2011. The motion was brought for 18 April 2011, but was adjourned three times, to four court dates, over a period of 8 months. The consent order was made on 22 June 2011. From the time of the first request for disclosure to the date the motion was completed, the father had 10 months in which to produce the disclosure, and he had 6 months from the consent order to comply.
The father was criticized by the court twice (in endorsements on 18 April and 22 June 2011) regarding his failure to comply with the rules and to serve and file his material on time. As well, the endorsement of 22 June 2011 specifically reminded the father that “parties must comply with the Rules and there must be consequences for failure to comply”.
Apparently, the father does not think that the rules apply to him. This is obvious from the way he presented his case at court and the fact that he had not filed his material in advance for either the motion argued on 18 April 2011 or for the case conference heard on 22 June 2011.
The Family Law Rules should not be bent, as the father suggested in argument. Court orders should be followed. And when they are not followed, there should be consequences.
The law is clear that to strike a party’s pleadings is an extreme remedy that should be used sparingly with utmost caution. There must be clear evidence of deliberate default and a complete disdain for orders of the court: M.H. v. C.S., 2007 ONCJ 326 (Ont. Ct.), para. 39.
The dismissal of a party’s action is a measure of last resort which should only be utilized in the clearest of cases: Giancoulas v. Aetna Life Insurance Co. of Canada, 2002 41993 (ON CA), para. 2.
A remedy striking a pleading is a serious one and should only be used in unusual circumstances. The sanction imposed should not go beyond that which is necessary to express the court’s disapproval of the conduct in issue: Marcoccia v. Marcoccia, [2008] O.J. No. 5231, 2008 ONCA 866, 60 R.F.L. (6th) 1, 2008 CarswellOnt 7783 (Ont. C.A.)
It is beyond question that the father has failed to comply with the disclosure order and has offered no reason, or explanation for doing so. The court then has the choice of striking the father’s pleadings, dismissing the father’s case, or staying the father’s claims. The sanction imposed should be the one necessary to express the court’s disapproval of the conduct in issue.
Under R. 2(4), the court is required to apply the Family Law Rules to promote the primary objective of the Rules, that is, to enable the court to deal with cases justly (R. 2(2)).
It would be unfair and unjust to not grant the relief sought in this motion. The mother has incurred the cost and inconvenience of several court appearances. She has done what she is supposed to do in the litigation. There is prejudice created by delay. A court case is not a game. It would be unjust to the mother, both objectively and subjectively, to allow the father to continue with his claims. The father’s behaviour clearly meets the test in R. 2.
The father had seven months since the order was made, and has not completed the disclosure ordered. In these circumstances, there are no other remedies available which adequately express the court’s disapproval of the father’s conduct. He has had more than enough time to comply with the disclosure order. And he was warned by the court twice that failure to comply with the rules would have and did have consequences for him. This is the clearest of cases.
The father’s case is dismissed for his failure to comply with the consent disclosure order of 22 June 2011.
The court chooses to dismiss the father’s case rather than the alternatives for several reasons. The only real issues outstanding at this point are financial (the mother’s claims for child support), and the father’s continuing claim for access. There was a final custody order made on consent on 22 June 2011 (custody to the mother).
There was almost no information available to the court regarding access. There was no evidence which would support a change in the access order. Although supervised access had been ordered on 18 April 2011, there were no notes produced from the Supervised Access Centre about the father’s access. It was not possible for the court to change the access order without evidence about how the access is going.
The temporary order re access made on 18 April 2011 shall be a final order, that is final access to the father shall be one hour, once per week supervised, at the Supervised Access Centre. The parents shall complete the intake promptly, if this has not already been completed. The father shall pay the costs of supervised access.
If the father wants to change the access he needs to show a pattern of stable, consistent, regular visits, over a suitable period of time, in which the children are comfortable with him and benefit from their contact with him. That evidence was not produced.
Custody has been determined, and access is not contentious at this point. The father has had all opportunities to complete the financial disclosure required and he has not. The court is choosing the remedy here that will bring certainty and finality to this case. The mother is entitled to finality. Dismissing the father’s claims is the remedy which will accomplish that.
The father’s case is dismissed under R. 1(8), R. 2, R. 13(17)(a), R. 14(23)(a), and/or R. 19(10).4.
The mother may proceed with her claims unopposed, and without notice to the father, using a Form 14B motion and a Form 23C affidavit.
The father shall not bring a motion to change without leave of the court, and until all costs are paid in full. The father has delayed the case, wasted time, and generated unnecessary expense for the mother. Leave is unlikely to be granted unless the disclosure required by s. 21 of the Child Support Guidelines is produced and attached to the father’s request for leave.
Released: 16 January 2012 ____________________________
Justice Carole Curtis