Court File and Parties

Court File No.: Halton 198/11 Date: 2012-05-31 Ontario Court of Justice

Between: Sadrudin Chatur, Applicant

— And —

Damiana De Los Reyes, Respondent

Before: Justice S. O'Connell

Heard on: March 2, 2012

Reasons for decision released on: May 31, 2012

Representation:

• Sadrudin Chatur: on his own behalf
• Damiana De Los Reyes: Robert A. Otto

O'CONNELL J.:

INTRODUCTION

[1] Both parties brought a number of motions, which were all heard before me on March 2, 2012. The Applicant, Sadrudin Chatur ("Mr. Chatur"), brought a motion for a finding that the Respondent, Damiana De Los Reyes, ("Ms De Los Reyes") is in contempt of the access provisions of the court order dated July 19, 2011, specifically, by failing to bring the child to access visits on August 13th and August 20th, 2011. Mr. Chatur brought a further motion seeking an order that Ms De Los Reyes comply with the access provisions of the court order dated September 13, 2011 and for an order requiring police assistance to enforce this order. Mr. Chatur also sought an order for reimbursement of the taxi expenses that he incurred to facilitate his access.

[2] Ms De Los Reyes brought a motion that Mr. Chatur pay temporary child support to her, based on an annual income of $40,000.00 imputed to Mr. Chatur. She further asked for an order striking Mr. Chatur's court application and motions still pending, and for an order prohibiting Mr. Chatur from making any further motions in this case without the court's permission. Ms De Los Reyes also seeks an order changing Mr. Chatur's access from Burlington to Oakville. Finally, Ms De Los Reyes seeks an order that Mr. Chatur produce all of her personal documents and records that remain in his possession.

BACKGROUND AND HISTORY OF PROCEEDINGS

[3] Mr. Chatur is 49 years old and Ms De Los Reyes is 42 years old. The parties were involved in a relationship although never married. The parties have a child together as a result of that relationship, namely Yzabella Mae Chatur, born […], 2009 ("Yzabella"). Yzabella is now two and one-half years old. After Yzabella's birth, the parties and Yzabella resided together in Mr. Chatur's home. Ms De Los Reyes left Mr. Chatur's home with Yzabella on or about March 28, 2011 and moved to a shelter for women and children.

[4] On June 3, 2011, Mr. Chatur brought an urgent motion for interim shared custody of Yzabella. Mr. Chatur sought to have the motion heard before the first case conference and raised some very serious allegations against Ms De Los Reyes, including allegations of fraud, theft, abandoning her children from a previous relationship, and planning to send Yzabella to the Philippines to be cared for by someone else. Mr. Chatur maintained that he was Yzabella's primary caregiver and that Ms De Los Reyes removed Yzabella from his care after he reported her to the police for theft. In responding materials, Ms De Los Reyes stated that she has always been Yzabella's primary caregiver and she also raised some very serious allegation about Mr. Chatur regarding domestic violence and physical abuse against both her and Yzabella.

[5] Prior to the commencement of Mr. Chatur's application for custody, the Halton Children's Aid Society was involved to investigate these concerns. In a letter dated May 27, 2011, the society indicated that it was not able to verify the child protection concerns. However, the society also stated in the same letter that it no longer had any concerns regarding Yzabella's safety now that the parties were living in separate residences. The society was aware that Yzabella was residing with Ms De Los Reyes.

[6] Mr. Chatur's motion for custody was adjourned pending further evidence or a full report from the society regarding its involvement with the parties and in particular, addressing Ms De Los Reyes's allegations of violence by Mr. Chatur against her and the child. The court directed both parties to execute the appropriate consents authorising the society to prepare such a report. In the interim, on a temporary 'without prejudice' basis, Ms De Los Reyes was granted temporary custody of Yzabella, who had been in her defacto custody since March 28, 2011. Mr. Chatur had very little, if no, contact with Yzabella since Ms De Los Reyes and the child left his home approximately two months earlier, and given the involvement of the society to investigate allegations of violence by him, Mr. Chatur was granted temporary supervised access on a weekly basis, the access to be supervised by his brother and sister-in-law. The court also made a temporary non-removal order, given Mr. Chatur's allegations about a potential flight risk regarding Ms Des Los Reyes.

[7] At the return of the court case on June 28, 2011, Mr. Chatur requested an adjournment of at least one month, as the report from the society was not ready and he also wished to provide the complete police records regarding the mother's alleged theft from his home, which he had not yet received. Mr. Chatur's motion for custody was therefore adjourned, on the consent of the parties, to August 26, 2011. Mr. Chatur continued to have access to Yzabella on a without prejudice basis, to be supervised by a mutually agreeable third party at the 'Amazing Playland' in Burlington, Ontario. At this court hearing, the court first learned that Mr. Chatur had filed a complaint against the Halton Children's Aid Society.

[8] On July 11, 2011, Mr. Chatur brought an urgent motion before Justice Zisman for a court order that Ms Salwa Azmi be permitted to supervise his access with Yzabella. He also brought a motion seeking an order appointing the Office of the Children's Lawyer. Ms De Los Reyes was not present at this hearing. Justice Zisman was not the judge case managing this matter and she was not comfortable dealing with the motion without Ms De Los Reyes being present and without a background of the case. She therefore adjourned the motion to July 19, 2011 before me. A copy of Justice Zisman's court endorsement was delivered to Ms De Los Reyes so that she was aware of what had occurred on that day.

[9] On July 19, 2011, Mr. Chatur's urgent motion came before me. After hearing submissions from both parties, I granted Mr. Chatur's request to refer the issues of custody and access to the Office of the Children's Lawyer. I further ordered that Mr. Chatur's access to Yzabella to continue every week at the Amazing Playland in Burlington, but that it was no longer necessary for Mr. Chatur's access to be supervised; therefore it was it was not necessary to have Ms Azmi supervise his access. Ms De Los Reyes had permitted unsupervised access between Mr. Chatur and Yzabella at Amazing Playland since the last court appearance and there were no concerns raised regarding that access.

[10] At the hearing date on July 11, 2011, Mr. Chatur advised the court that the Halton Children's Aid Society had refused to release a full report and their records to him because he had filed a complaint against them and threatened to commence legal action against the society. Mr. Chatur was directed to bring a motion under Rule 19 of the Family Law Rules, which must be served upon the society, to obtain disclosure of the society's report. The custody and access motions were then adjourned to August 26, 2011.

[11] Mr. Chatur then brought an emergency motion on August 25, 2011, for an order that Ms De Los Reyes comply with my Order dated July 19, 2011, specifically that Ms De Los Reyes deliver Yzabella to the Amazing Playland at 3:00 p.m. Ms De Los Reyes also brought a motion for child support returnable August 26, 2011 and all motions were adjourned to September 13, 2011 to permit both parties to respond to the other party's new motion.

[12] Up to this point, both parties were self-represented. Ms De Los Reyes retained a lawyer on September 2, 2011, shortly before the motions were returning on September 13, 2011.

[13] On September 13, 2011, all of the motions returned before me. Mr. Chatur brought a further motion on that date for an order that his access continue on the weekends at his home or alternatively for an order transferring custody of Yzabella to him immediately before the completion of the Children's Lawyer's investigation of the issues of custody and access. At that hearing, Mr. Chatur filed a recent and detailed report of the Halton Children's Aid Society which he submitted clears him of all wrong-doing and supports his position that the mother made false statements about him to the society. At the same hearing, Ms De Los Reyes filed evidence that Yzabella had returned home with bruises after the last weekend access visit. The child's family doctor examined the child and made a report to the Children's Aid Society, and the society re-opened its investigation.

[14] After hearing submissions from the parties, for detailed written reasons set out in my endorsement, dated September 3, 2011, I declined to change the temporary custody and access orders until the Office of the Children's Lawyer became involved and completed its investigation of these issues. However, I did make a change to the commencement time of Yzabella's access with Mr. Chatur, given that the later time of 3:00 PM interfered with her afternoon nap.

[15] Mr. Chatur appealed the September 3, 2011 court order and reported me to the Judicial Complaints Council for discrimination. Since the September 3rd hearing date, Mr. Chatur has also reported Ms De Los Reyes's lawyer's office staff to the police for criminal harassment and he has reported Ms De Los Reyes's counsel to the Law Society of Upper Canada for professional misconduct, specifically, for allegedly misleading the court.

[16] At the same hearing, Ms De Los Reyes also sought child support from Mr. Chatur, based on an annual imputed income of $40,000. Mr. Chatur had not paid any child support since the parties had separated. Mr. Chatur had filed material indicating that his self-employment income from his junk removal business was $29,000.00, however he stated that he was in the process of shutting down that business and starting a new delivery and moving business, and that he now had very little income.

[17] I declined to make a temporary order imputing income to Mr. Chatur without stronger evidence. I adjourned the child support motion and ordered Mr. Chatur to provide the financial disclosure required under section 21 of the Child Support Guidelines, and in particular the disclosure required to determine income for self-employed persons.

[18] On November 9, 2011, Ms De Los Reyes's motion for child support returned before me and Mr. Chatur brought a further urgent motion renewing his claim for custody and alternatively for alternating weekend access with Yzabella from Friday to Sunday. Mr. Chatur further alleged in his affidavit sworn November 6, 2009 that Ms De Los Reyes had recently abused Yzabella while the child was in her care and that the child had been returned to him for access with serious wounds. Mr. Chatur reported his concerns to the Halton Children's Aid Society and the society again became involved to investigate the child protection concerns raised.

[19] At this hearing, Mr. Chatur advised that he had refused to accept correspondence or court documents from Mr. Otto, Ms De Los Reyes lawyer, or his staff because he felt threatened by them. By this time, he had already reported Mr. Otto to the Law Society for professional misconduct and reported his staff to the police for criminal harassment. Mr. Chatur had filed lengthy documents concerning the financial disclosure that had been ordered, but Mr. Otto advised the court that he had not been served. The issue of the determination of temporary child support was adjourned to permit Mr. Otto to receive and review the documents.

[20] However, at this hearing, Mr. Chatur advised the court that his annual income was approximately $30,000.00. Given that there had been no child support payable since May of 2011, when Ms De Los Reyes first advanced her claim, I ordered, on a temporary without prejudice basis, pending a review of the financial disclosure, that Mr. Chatur pay child support to Ms De Los Reyes in the amount of $270.00 per month, based on his stated income of $30,000.00 per annum, in accordance with the Child Support Guidelines for Ontario for one child. Mr. Chatur then stated he would experience hardship if he had to pay that amount, yet he had not advanced an undue hardship claim nor filed evidence of hardship. Mr. Chatur was granted leave to amend his application to plead undue hardship at the next hearing date.

[21] I declined to change the custody or access provisions pending the completion of the investigation by the Office of the Children's Lawyer. As well, counsel for the Children's Aid Society attended court on that day and advised that the society was satisfied that Ms De Los Reyes had not abused the child and was satisfied with the doctor's explanation, but it had not yet closed its file at this time. Finally, the custody motion brought by Mr. Chatur was served on short notice (the day before) and Ms De Los Reyes has not had an opportunity to respond. Mr. Chatur has apparently also appealed the November 9, 2011 court order.

[22] On December 21, 2011, Mr. Chatur brought a further urgent motion to temporarily change the location of his access for the Christmas holidays to the permit Yzabella to participate in Mr. Chatur's family, in the presence of his seven other children from previous relationships. After hearing submissions, I determined that it was in Yzabella's best interests that she be able to participate in Mr. Chatur's family Christmas celebration and made a temporary order for Christmas access on December 26, 2011 from 10:00 a.m. to 5:00 p.m. to be exercised at Mr. Chatur's home in the presence of family.

[23] The motions for child support and custody returned before me on January 23, 2012. Mr. Chatur brought a further motion at that hearing seeking an order that the temporary order for child support made on November 9, 2011 be set at zero, and for an order for that the taxi costs he incurred to exercise access be re funded to him. At that hearing, Mr. Chatur brought his seventeen year old son from one of his previous relationships to watch the court hearing. After hearing submissions, I permitted the child to stay in the court room given that he was not the child who was the subject of the custody proceeding before me. However, before hearing the motions, Mr. Chatur, for the first time, asked me to recuse myself on the grounds of bias, given that he had filed a complaint against me at the Judicial Complaints Council. Under the circumstances, I decided to adjourn the motions to February 14, 2012 so that I could determine the appropriate course of action.

[24] On February 14, 2012, for detailed oral reasons given, I declined to recuse myself from this court case. However, in the mean time, Mr. Chatur had served two further urgent motions on short notice: one for contempt against Ms De Los Reyes, returnable February 29, 2012 and the second for an order requesting police enforcement of his access, also returnable on that date. Ms De Los Reyes also served a motion seeking to strike Mr. Chatur's application on the grounds that he had failed to comply with my previous order for financial disclosure. Ms De Los Reyes's counsel was not available on February 29, 2012, so the parties agreed to adjourn all motions to Friday, March 2nd, 2012 before me.

[25] On March 2, 2012, all motions were heard before me at a lengthy hearing. By that time, the Office of the Children's Lawyer had not yet completed its investigation and report of the issues of custody and access. I reserved my decision and the proceeding was adjourned to May 31, 2012 for a settlement conference with the hope that the Children's Lawyer's social work investigation and report would be complete by that time. To date, it is uncertain whether the Children's Lawyer has completed its investigation in this matter.

THE LAW AND ANALYSIS

Mr. Chatur's Motion for Contempt against Ms De Los Reyes

[26] Rule 31 of the Family Law Rules provides that a contempt motion is available to enforce any order, except an order for payment of money, even if another penalty is available. Further, section 38 of the Children's Law Reform Act R.S.O. 1990 c. C. 12 as amended, specifically provides that the Ontario Court of Justice may punish "any wilful contempt of or resistance to its process or orders" with respect to custody or access by a fine up to a maximum of $5,000.00 or imprisonment for a maximum of 90 days.

[27] The Notice of Motion for a contempt motion (Form 31) and supporting affidavit must be served by personal service, unless otherwise ordered by the court. The Form 31 Notice of Motion clearly requires that the details of the contempt be specified. The affidavit must be based on the personal knowledge of the deponent although the deponent may rely on information learned from another identified source if (a) the deponent swears he believes the information to be true; and (b) the information is unlikely to be disputed. The Notice of Motion must set out the specific allegation of contempt with precision. Failure to do so will result in a dismissal of the contempt motion unless the moving party can provide evidence that particulars were given in some other way.[1]

[28] In order to make a finding that a party is in contempt, the court must be satisfied of the following:

1. The Order in question is clear and unequivocal;
2. The breach of the order must be done wilfully and deliberately; and
3. The evidence must establish the contempt on the criminal standard, that is, beyond a reasonable doubt.[2]

[29] The requirement that the breach must be "wilful and deliberate" consists "of the intentional doing of an act that is prohibited by the order. It is not necessary that the defendant intended to disobey the order...".[3] In McDonald v. Tassone[4] Justice Stortini stated that: "[f]or a finding of guilt, the suspect party must intentionally and deliberately do an act, knowing that it was prohibited by the court order."

[30] The onus to establish contempt beyond a reasonable doubt is on the person alleging the contempt.

[31] There are situations where the reasons for the breach provide a legitimate excuse.[5] In order to make out this defence, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. Thus there is both a subjective and an objective component. Notwithstanding that a parent has a subjective belief that access is harmful, if objectively the belief is not legitimate, a denial of access may amount to contempt.[6]

[32] Mr. Chatur submits that Ms De Los Reyes deliberately and wilfully refused to comply with the court Order for access dated July 19, 2011 on three separate occasions: February 5, 2012, August 13, 2011, and August 20, 2011. He did not specify the February 5th contempt allegation in his contempt motion, as required by the Family Law Rules, however, this allegation is raised in his supporting affidavit.

[33] The affidavit in support of Mr. Chatur's contempt motion is one page. It does not provide details of the alleged contempt, other than the fact that these three visits did not occur. In her response, Ms De Los Reyes does not dispute that the access did not take place on August 13, 2011. This is because Mr. Chatur was in the Philippines at that time. According to Ms De Los Reyes' affidavit, the parties agreed to reschedule the access to the following day, August 14, 2011, when Mr. Chatur returned. This access visit in fact took place on August 14, 2011 and Mr. Chatur does not deny this.

[34] Regarding the access visit on August 20, 2011, Ms De Los Reyes requested, and Mr. Chatur verbally agreed, that the time for access should be changed to accommodate Yzabella's nap time. However, prior to the August 20, 2011 visit, Mr. Chatur changed his mind and as a result of a conflict between the parties, the access did not take place. Following that conflict, Ms De Los Reyes immediately brought a motion to change the access time to accommodate Yzabella's nap and this was granted by the court.

[35] On February 5, 2012, Ms De Los Reyes cancelled the access visit because she was ill. She informed Ms Chatur that she was ill at approximately 7:20 a.m. on the morning of the visit. All other access visits since July of 2011 have taken place in accordance with the July 2011 court order.

[36] Mr. Chatur has not established beyond a reasonable doubt that Ms De Los Reyes has deliberately and wilfully disobeyed the court order dated July 19, 2011. The evidence supports legitimate reasons for why the access did not occur on the three separate occasions that Mr. Chatur alleges contempt. In fact, the evidence does not demonstrate any contempt by Ms De Los Reyes. Mr. Chatur's motion for contempt is therefore dismissed.

Ms De Los Reyes's Motion for Child Support

[37] Section 19 of the Child Support Guidelines reads as follows:

19. Imputing income.

(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent's or spouse's property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) Reasonableness of expenses. -- For the purpose of clause (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

[38] A self-employed person clearly has the onus of demonstrating the basis of his or her net income for child support purposes. This includes demonstrating that the business deductions from gross income should not be taken into account in the calculation of income for support purposes.[7]

[39] It is also well established in the case law that a self-employed person has an obligation to put forward adequate and comprehensive records of income and expenses, so that a proper determination of the amount of child support can be established. The onus rests on the parent seeking to deduct expenses from income to provide meaningful documentation supporting those deductions, failing which an adverse inference can be drawn.[8] As Justice Frances P. Kitely summarized in Meade v. Meade, supra:

"[81] It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary."

[40] The leading case in Ontario is Drygali v. Paul, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (Ont. C.A.). In this case, the Ontario Court of Appeal made it clear that it is not necessary for a court to find that a parent has acted in bad faith before it has the discretion to impute income. The word "intentionally" used in section 19 means "voluntarily." In other words, the court need not find that a parent is deliberately intending to evade his support obligations before income can be imputed. Parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

[41] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence: See Drygala v. Pauli, supra, para 44. Although a court can impute income on a motion, motions are limited by the evidence available at this stage in the proceeding. Where it is difficult to determine a payor's income on a motion because of the limited nature of the evidence, it is prudent to be reasonable in the assessment of income for support purposes.[9]

[42] Mr. Chatur has filed two sworn financial statements in this case. In his first statement sworn June 6, 2011, he deposes that he is self-employed, carrying on a business called "Sam's Junk Removal Services." In that financial statement, he deposed that his professional net income from this business was $29,150.00, and that with interest and investment income, his total 2011 annual income was approximately $29,300.00, excluding Child Tax Benefit of approximately $500.00 per month for children living with him from previous relationships. His annual expenses were calculated at $34,680.00. According to his three most recent notices of assessment, Mr. Chatur has been steadily self-employed in businesses known as "Sam's Moving and Delivery Service", "Sam's Junk Removal and Delivery Service" or "Sam's Junk Removal Service" for the past three years.

[43] On October 18, 2011, Mr. Chatur filed an updated financial statement deposing that his income was now only $550.00 per month from the Canada Child Tax Benefit. However, at page 3 of this sworn statement he indicates that his monthly expenses are $2,525.00 and his net monthly income was $2,500.00. The contradiction was not explained by Mr. Chatur. Mr. Chatur indicated in the financial statement that he continued to be self-employed but does not list "Sam's Junk Removal Service" as his business. It is uncertain if this is largely a cash business or otherwise as no invoices, general business ledgers, cancelled cheques or chequing accounts were provided indicating how Mr. Chatur is paid for his services in this businesses.

[44] Mr. Chatur also owns a 50% interest in the home from which her operates his business located 2452 Cavendish Drive in Burlington, Ontario with his interest valued at $65,000.00, according to his sworn Financial Statement dated October 18, 2011. He also owns two vehicles, a GMC, and a Buick. Mr. Chatur has no significant debt, other than $2,000.00 listed on his Financial Statement. According to the incomplete record of credit card statements filed, Mr. Chatur's credit cards (President's Choice Master Card, Home Trust Visa, Sears) are all in good standing with payments made on time. From July 2011 to September 2011, Mr. Chatur made payments totalling $2,100.00 towards his three credit cards produced in these proceedings.

[45] Mr. Chatur states that he supports his seven children of previous relationships, four of which who apparently reside with him in a shared parenting arrangement. He further states that he helps pay for the post-secondary expenses for one of his oldest daughters. There does not appear to be any corresponding debt listed anywhere in the disclosure provided for these expenses, so presumably Mr. Chatur is able to pay these expenses without accumulating debt.

[46] Mr. Chatur admits to making two trips to the Philippines in 2011. There is no documentation or explanation regarding how Mr. Chatur paid for these trips. Mr. Chatur also re-married in 2011 in the Philippines and there was no explanation for how the wedding expenses were paid.

[47] Mr. Chatur has also ordered production of several of the transcripts of these court proceedings. No explanation has been provided by Mr. Chatur regarding how he paid for these transcripts, which can be quite expensive.

[48] Mr. Chatur is a healthy, intelligent 49 year old man, who appears to have successfully operated a number of different businesses since 2008. Yet Mr. Chatur states that he applied for and was approved for Ontario Works in January of this year, shortly after the order for temporary without prejudice child support was made on November 9, 2011. He therefore submits that child support should be set at zero, as he has no source of income other than social assistance.

[49] This court does not need to make a finding that Mr. Chatur is intentionally evading his child support obligations to impute income to Mr. Chatur. The evidence before me, albeit limited, does not support Mr. Chatur's position that his income should be set at zero, or that he is not capable of working and generating income at a level that he maintained since 2008. It also important to note that Mr. Chatur did not comply with the order for financial disclosure that was made on September 13, 2011, for example, his general ledger for his business income, business expenses and supporting documentation for business expenses, including any financial statements prepared by his accountant at fiscal year end, monthly banks statements and cancelled cheques. The disclosure that was provided was inadequate, and the court draws an adverse inference against Mr. Chatur.

[50] In reviewing all of the very limited documentation provided at this motion, I conclude that there is more income available then reported and that Mr. Chatur is capable of earning significantly more income than social assistance. Income should be imputed to Mr. Chatur for child support purposes in the amount of $30,000.00, without prejudice to adjusting this amount at a trial on a full evidentiary record, or when more adequate financial disclosure has been provided.

Ms De Los Reyes's Motion to Strike Mr. Chatur's Pleadings

[51] The Family Law Rules contains a number of rules which give a court the power to strike a party's pleadings or application. Rule 13(17) of the Family Law Rules provides that if a party does not obey an order to file a financial statement or provide information (as set out in Rule 13), the court can dismiss their case or strike their pleading. Rule 1(8) provides that court may deal with failure to follow an order by making any order that it considers appropriate for a just determination of the matter, on any conditions that the court considers appropriate, including an order dismissing the claim of any party who has willfully failed to follow the rules or obey the order. Rule 14(23) provides that the court may strike pleadings, dismiss a case and order that no further proceedings can be brought without leave of the court as a sanction for failure to comply with an order on a motion. Rule 19(10) provides that if a party does not follow a document disclosure order, then the court can strike that party's pleadings.

[52] Further, Section 24 Child Support Guidelines provides that if a party does not comply with an order to provide documents under section 22 of the Child Support Guidelines, the court can strike out that party's pleadings, proceed to a hearing, make an adverse inference and/or impute income.

[53] Mr. Chatur's financial disclosure was late and the disclosure provided by him was limited and inadequate, contrary to the court order dated September 3, 2011. However, the case law is clear that pleadings should only be struck as a last resort. It is an extreme remedy that only should be exercised with utmost caution by a court, particularly when a child's interests are involved.[10] The trial judge in this case will need the participation of both parties to receive complete information about Yzabella's best interests, especially given the serious allegations raised by both parents about the other.

[54] In my view, Mr. Chatur's failure to provide comprehensive financial disclosure on a timely basis warrants a sanction of costs rather than an order striking his pleadings. Where late disclosure is provided, it is preferable to order costs, rather than strike the pleadings.[11] Where financial disclosure orders are repeatedly violated, some courts have struck pleadings on financial issues and have permitted the parenting issues to continue.[12] The court may very well adopt this approach, depending on Mr. Chatur's future compliance with financial disclosure orders. At a minimum, the court can draw an adverse inference against Mr. Chatur when determining his income for child support purposes, which I have done.

Ms De Los Reyes's Motion Prohibiting Mr. Chatur from Bringing Any Further Motions in These Proceedings

[55] Mr. Chatur has brought at least ten motions between April of 2011, when he commenced these proceedings, and March of 2012. Many of these motions were brought on an urgent basis and on short notice. A number of the motions sought the same relief, which had already been denied pending the outcome of the investigation of custody and access by the Office of the Children's Lawyer. Ms De Los Reyes has incurred great expense in responding to these motions, many of which repeatedly include very serious allegations against her. There has also been an inordinate amount of court time and expense in dealing with Mr. Chatur's motions, and in my view, a disproportionate amount of court resources have been utilised at the expense of other litigants in this court.

[56] As previously noted, Mr. Chatur has also reported Mr. Otto, Ms De Los Reyes lawyer to the Law Society of Upper Canada for alleged professional misconduct. He has reported Mr. Otto's staff to the police for alleged criminal harassment. He has reported the court to the Judicial Complaints Council for alleged judicial misconduct. He has threatened to commence legal action against the Halton Children's Aid Society during the course of their investigation. He has filed a complaint against that agency with the Child and Family Services Review Board. He has reported Ms De Los Reyes to the police for alleged fraud and theft. To date, none of the allegations of professional, individual and institutional conduct have been proven. He has also commenced two appeals of temporary court orders made in these proceedings, to which Ms De Los Reyes was forced to respond. The outcome of these appeals is not known to the court.

[57] Although some of the actions described in the above paragraph involve actions and proceedings commenced outside of this court action, I agree with the submissions of counsel for Ms De Los Reyes that in determining whether a party is a vexatious litigant, his behaviour both in an out of court has been held to be relevant.[13]

[58] It is safe to say that Mr. Chatur has conducted his litigation in a very aggressive manner. He is certainly entitled to do so, however, he is not entitled to needlessly waste court time and cause unnecessary expense to the other party and the court with repetitious motions.

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

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[60] The Ontario Court of Justice has the powers to control its own process and may establish procedural tools to ensure the process is fair, effective and efficient. In R. v. Felderhof, Justice Rosenberg stated,

[41] Even a statutory court, such as the Provincial Offences Court, has the implied power to control its own process. . . .

[43] . . . It seems to me that by necessary implication it must have the procedural tools to ensure its process is effective and efficient for the disposing of applications for any of those remedies.

[61] Mr. Chatur is very close to becoming a vexatious litigant and in the future, he is prohibited from bringing any further motions without leave of the court by way of a form 14b motion requesting leave, with notice to Ms De Los Reyes.

Mr. Chatur's Request for Reimbursement of the Taxi Expense

[62] On June 28, 2011, I ordered that Mr. Chatur be responsible for Ms Des Los Reyes' taxi expenses to transport Yzabella to access visits, subject to any claim for legal costs or costs of these proceedings. Mr. Chatur agreed to pay the taxi expense but submitted that this if the police and CAS reports cleared him of all wrong doing and proved that Ms De Los Reyes fabricated all allegations, then he would be seeking all of his court costs, including the taxi costs. Although Mr. Chatur paid some of Ms De Los Reyes taxi expenses, he stopped paying these expenses after receiving the CAS reports in this matter which did not verify child protection concerns against him.

[63] Until these proceedings are resolved, I decline to order the reimbursement of Mr. Chatur's taxi expenses at this time. The June 28, 2011 order clearly contemplated any claim for costs in these proceedings once the issues between the parties had been finalised. Mr. Chatur may renew his claim for the reimbursement of his taxi costs once all issues between the parties are finally resolved, either at trial, or by way of minutes of settlement.

Ms De Los Reyes Request to Change the Access Venue

[64] Since Mr. Chatur stopped paying the taxi expenses, Ms De Los Reyes has requested that the access take place in Oakville, close to Yzabella's residence at the "Busy Bodies Indoor Playland", as she has had difficulty transporting the child to Burlington and she cannot afford the taxi expense on her own. Mr. Chatur has two vehicles and can easily travel to Oakville from Burlington. By changing the access venue to the Oakville location, the taxi expense is eliminated. Given that Mr. Chatur has refused to pay the taxi expense to facilitate access and he has the ability and means to travel to Oakville from Burlington, this is a reasonable request and will be granted.

Ms De Los Reyes Request for the Return of her Personal Documents

[65] Ms De Los Reyes claims that Mr. Chatur has maintained all of her personal records involving a human rights complaint against a former employer and that he has refused to return these records to her. Indeed, throughout the course of these proceedings, Mr. Chatur has attached several excerpts from Ms De Los Reyes human rights complaint to his affidavit in an effort to attack her credibility. It appears that Mr. Chatur does have these documents in his possession, or at least some of them. If Mr. Chatur does have any personal records of Ms Des Los Reyes still remaining in his possession, then he should return those documents to her immediately. They are her personal property.

ORDER

[66] For the above reasons, I make the following orders:

1. Mr. Chatur's motion for contempt is dismissed.

2. Mr. Chatur's motion for reimbursement of taxi expenses is dismissed, without prejudice to renewing this claim at the conclusion of these proceedings.

3. Ms De Los Reyes's motion to strike Mr. Chatur's pleadings is dismissed.

4. Pending the receipt of the Children's Lawyer's report and/or recommendations, Mr. Chatur's access to the child shall be changed from the Amazing Playland in Burlington to the Busy Bodies Indoor Playland in Oakville, Ontario at the same time and date specified in the court order dated September 13, 2011.

5. Mr. Chatur is prohibited from bringing any further motions without leave of the court, such leave to be requested by way of a form 14b motion in advance and served upon Ms De Los Reyes.

6. Mr. Chatur shall forthwith deliver any and all of Ms De Los Reyes's personal documents regarding her Human Rights Complaint still remaining in his possession to Ms De Los Reyes' counsel.

7. Commencing May 1, 2011, Mr. Chatur shall pay temporary child support in the amount of $270.00 based on an imputed income of $30,000.00. Temporary arrears are fixed at $3,510.00 and shall be payable at a rate of $50.00 per month, commencing June 1, 2012. However, if Mr. Chatur is more than 30 days late in making these payments or the ongoing support payments set out in this temporary order, then the entire amount of arrears shall immediately become due and payable.

8. A Support Deduction Order shall issue.

[67] If either party seeks costs, he or she will file written submissions no later than thirty days from the date of this order. Any written response to be served and filed no later than twenty days from that date.

Released: May 31, 2012

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] Follows v. Follows, 41 R.F.L. (4th) 248 (Ont. C.A.); Pravtchev v. Kostadinov (January 14, 2010), Doc. 05-FD-304887FIS (Ont. S.C.J.); Taylor v. Thompson 2004 CarswellOnt 4737 (Ont. C.J.)

[2] Hobbs v. Hobbs, 2008 ONCA 598, 54 R.F.L. (6th) 1 (Ont. C.A.).

[3] Einstoss v. Starkman, [2002] O.J. No. 4889 (Ont. S.C.J.) affirmed (2003), O.J. No. 3297 (Ont. C.A.).

[4] McDonald v. Tassone, [2002] O.J. No. 560 (Ont. S.C.J.)

[5] Prescott-Russell Services for Children and Adults v. G.(N.), 82 O.R. (3d) 686 (Ont. C.A.)

[6] R.(K.A.) v. S.(B.T.), 2005 ONCJ 44, [2005] O.J. No. 635 (Ont. C.J.)

[7] Whelan v. O'Connor, 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 CarswellOnt 2581 (Ont. Fam. Ct.).

[8] Meade v. Meade, 31 R.F.L. (5th) 88 (Ont. S.C.J.) and Orser v. Grant, [2000] O.J. No. 1420 (S.C.J.).

[9] Stoyshin v. Stoyshin, [2007] O.J. No. 1772 (S.C.J.) at par. 13

[10] King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, (C.A.); Haunert-Faga v. Faga, (2005), 20 R.F.L. (6th) 293 (Ont. C.A.) at paragraph 7

[11] Vogl v. Vogl, 2007 ONCA

[12] Sleiman v. Sleiman (2002) 28 R.F.L. (5th) 447 (Ont. C.A.).

[13] Bishop v. Bishop, 2011 ONCA 211, [2011] O.J. No. 1290 (C.A.)