Court File and Parties

Court File No.: 194/13 Date: 2014-08-07

Ontario Court of Justice

Re: Cindy Marie Bourassa (Applicant)

And: Ranjith Magee (Respondent)

Before: Justice S. O'Connell

Counsel:

• Susan Elizabeth Scott, for the Applicant
• Ranjith Magee, Acting in Person

Endorsement

Introduction

[1] The applicant, Cindy Bourassa, has brought a motion for an order striking the respondent, Ranjith Magee's pleadings, and for leave to proceed with her application for relief on an uncontested basis.

Background Facts

[2] The applicant is 39 years old and resides in the city of Burlington. She is employed at the Toronto Dominion Canada Trust. In 2012, prior to going on maternity leave, she earned $64,448.25, according to the most recent notice of assessment attached to her financial statement filed. She has now completed her maternity leave and is back at work full-time.

[3] The respondent is 43 years old and resides in the city of Brampton. He lives with his mother in her home. He advised the court that he works as an employed or self-employed chartered bus and limousine driver. He has also been a ski and snowboarding instructor. According to his sworn financial statement, dated August 26, 2013, that he filed in these proceedings on the same date, he is employed at Belca Tours and Coach Incorporated and his monthly income from is $3,016.67 or $36,200.00 annually. According to page 2 of the financial statement, this income is comprised of a monthly salary of $2,916.67 and monthly commissions, tips and bonuses of $100.00. This is the only financial statement filed by the respondent. There are no notices of assessments, t-4 slips, or pay stubs attached.

[4] The parties became involved in a relationship and lived together for approximately six months from June of 2012 to December 3, 2012, when they separated. Their son and only child, Elliot Shiran Magee, was born on June 13, 2012 ("Elliot"). He is now two years old.

[5] After the separation it appears that the respondent saw Elliot sporadically at the home of the applicant, however, it is not disputed that he has not seen the child since July of 2013, since Elliot was twelve months old. The respondent did not pursue access to the child since that time, nor did he request any specific time to see him or to make arrangements to see him. As a result of the respondent's employment, he is often traveling during the week and he is out of the province and the country on a regular basis. The respondent submits that he should be permitted to see Elliot when his schedule permits, at the applicant's home upon 24 hours' notice.

[6] After the parties separated, the respondent made some payments of child support in the amount of $250.00 per month, although it was not consistent. The monthly amount was determined by the respondent. He did not provide any financial disclosure to the applicant.

[7] The applicant believes that the respondent should be paying child support based on a gross annual income of $50,000.00, based on her understanding and knowledge of the respondent's income while the parties were in a relationship.

[8] In January of 2013, the applicant retained counsel who wrote to the respondent and requested financial disclosure on January 24, 2013. She also provided a proposal for custody and access. The letter encourages the respondent to consult a family lawyer with a view to resolving the issues between the parties outside of court.

[9] The letter was sent to the respondent at his mother's residence by registered mail. The respondent did not respond to this letter. He claims that he never received it. The applicant attempted to encourage the respondent to participate in a negotiated resolution of the issues.

[10] After receiving no response to her request for financial disclosure and to negotiate a resolution of the issues between them, the applicant commenced this application for custody and support on April 18, 2013. The respondent was personally served with the application on April 28, 2013. The First Appearance on the application was scheduled for July 26, 2013.

[11] On July 18, 2013, the respondent brought a form 14b motion requesting that the July 26, 2013 First Appearance date be adjourned as he would be travelling to Barbados "to assist immediate family members with sensitive family matters." He also sought an extension for the service and filing of his answer and financial statement.

[12] On July 23, 2013, the court granted the request for the adjournment of the First Appearance and permitted the respondent to late serve and file his answer, 35.1 affidavit, and financial statement on or before August 26, 2013.

[13] On August 28, 2013, the parties attended the First Appearance. The respondent brought his answer/claim and financial statement to court, but he was missing his notices of assessment for the past three years and his 35.1 affidavit. In his answer/claim, the respondent sought access to the child with 24 hours' notice prior to access and to pay child support in accordance with the Child Support Guidelines. He did not wish to pay any section 7 expenses and sought an order that the applicant be responsible for the section 7 expenses that she incurs, including child care as it is her responsibility. The respondent did not seek custody.

[14] At the First Appearance, the respondent disputed paternity of the child and sought a DNA paternity test. The parties entered into a consent order on that day which provides as follows:

(i) The Respondent shall arrange and pay for a DNA test to determine the paternity of the child: Elliot Shiran Magee, born June 13, 2012. This test shall be completed and the results served on the Applicant's counsel on or before September 25, 2013.

(ii) The Respondent shall continue to pay child support to the Applicant on a w/o prejudice basis until the next return date of September 30, 2013 in the amount of $250 per month.

(iii) The Respondent shall comply with the endorsement of Madam Justice O'Connell and serve and file the following materials on or before September 25, 2013:

1. Sworn financial statement with attachments
2. Form 35.1

[15] On the second "First Appearance" date of September 30, 2013, the respondent had not arranged or paid for paternity testing and he had not served and filed his 35.1 affidavit and his sworn financial statements with the notices of assessments (or any attachments at all, including year to date t-4 slips, paystubs or employment letters) regarding proof of his income. The respondent has now admitted that he is the father of the child.

[16] The applicant consented to the late filing of the respondent documents. The parties entered into a consent order on that day in which the respondent was granted a further extension to file his financial statement with the proper attachments (notices of assessment) and his 35.1 affidavit. The parties also agreed to schedule a case conference before a judge on November 19, 2013.

[17] On November 19, 2013, the first case conference was adjourned because of a recent death in counsel for the applicant's family. The case conference was adjourned on consent to January 7, 2014.

[18] On January 7, 2014, parties appeared before me for the first case conference. The respondent filed a case conference brief in which he stated that he was seeking custody, joint custody or "partial custody" of the child, notwithstanding that he had not made a claim for custody in his answer. The respondent also acknowledged that he had not seen the child since July of 2013 and was seeking access upon 24 hours' notice at the applicant's home.

[19] The respondent had not yet provided the financial disclosure required, including the notices of assessment or any proof of income attached to his financial statement, as required by the Family Law Rules, and in accordance with the Consent Order dated August 28, 2013. In his brief, he stated that his gross annual income was now $32,000.00. He also stated that in addition to being a chartered bus and limousine driver, he was a "first responder" with the Canadian Ski Patrol and is yearly re-certified.

[20] On January 7, 2014, I directed that the respondent comply with the order for financial disclosure made on August 28, 2013, and made a further temporary order that the respondent provide financial disclosure no later than February 24, 2014, as follows, on consent:

Schedule A - Financial Disclosure to be Served and Filed by Respondent

1. Financial statement, in Form 13 or 13.1 as required by the Family Law Rules, if the latest one is more than 30 days old. If there have been only minor changes to the information in the party's latest financial statement, an affidavit updating is sufficient

2. A copy of every personal income tax return, with all schedules, attachments and information slips, filed by the party with Canada Revenue Agency for three most recent taxation years.

3. A copy of every notice of assessment or re-assessment received from Canada Revenue Agency for the three most recent taxation years.

4. A copy of all income slips (T4s, T4As, T5s, etc.) received for any of the three most recent taxation years for which a tax return has not been filed.

5. Proof of any payments of support made directly to, or for the benefit of, the support recipient or a child (not through Family Responsibility Office) for the last 12 months.

6. A copy of any application made by or for the party within the last three years for a loan, line of credit, credit card, or mortgage, including any statement of income or net worth provided by or for the party.

7. A copy of the most recent paystub or statement with year to date income for the current calendar year.

8. A copy of all benefit information circulars or benefit booklets outlining all employee benefits for healthcare, dental care, prescriptions and life insurance. If no circular or booklet is available, a detailed statement from the employer or group plan insurer outlining these benefits.

9. Year-end financial statements for all businesses, including income and expense statements and list of assets, liabilities and debts.

10. The most recent monthly or quarterly income and expense statement for all businesses.

11. A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, the party and persons or corporations with whom the party does not deal at arm's length.

12. A copy of any application made by or for the business or a loan, line of credit, credit card or mortgage, including any statement of income or net worth provided by or for the business.

13. Copies of all bank statements and credit card statements for all the years 2013, 2012, and 2011.

14. Names and contact information for all income sources.

[21] The respondent did not comply with any provision of this order. On February 19, 2014, the applicant was compelled to bring an urgent motion for travel as the respondent would not consent to her taking the child to the Dominican Republic for a one week holiday. The motion was contested and argued on that day. After hearing argument, the court granted the applicant permission to travel to the Dominican Republic for a one week holiday with the child. The legal costs incurred to argue the motion were ordered against the respondent in the amount of $500.00. The respondent has not paid this amount. The issued order for travel and costs was delivered to the respondent on February 20, 2014.

[22] By March of 2014, the respondent still had not complied with the order for financial disclosure made on January 7, 2014 or the previous orders. The applicant brought a motion to strike the respondent's pleadings. It was properly served and returnable on March 18, 2014.

[23] On the return of the motion on March 18, 2014, the respondent did not attend. However, he faxed a letter to the court on the morning of the motion advising that he "continues to be very ill" and cannot attend court. The motion was adjourned to April 28, 2014 to permit the respondent to attend and file responding materials, including his financial disclosure. The court also ordered that the respondent provide a medical and/or hospital report regarding the illness that prevented him from attending court on that day and made the next date peremptory. The court also ordered the respondent to pay the costs of the wasted appearance that day in the amount of $500.00 given the lack of advance notice to the applicant or the court.

[24] On April 28, 2014, the motion returned before me. At that time, the respondent attended and provided a hand-written note on a note pad from a Dr. Herman which stated that on March 18, 2014, the respondent "was seen for a medical visit." No other information was provided regarding the nature of the illness that prevented him from attending court that day. Further, he had still not provided any of the financial disclosure ordered.

[25] The motion was argued on that day and I reserved my decision. On May 13, 2014, after the motion was argued and my decision reserved, the respondent wrote to the court directly seeking leave to file some written submissions or documents for consideration after the hearing of the motion.

[26] In an endorsement dated May 13, 2014, I ordered, that the respondent serve these documents on the applicant and bring a 14b motion seeking leave to have the court review them as part of the evidence for the motion, or to set a date for further submissions regarding any information filed after the hearing of the motion. I did not review the documents but directed court staff to return the respondent's submissions until he followed the proper procedure. The respondent did not renew his request and to date, has not filed a 14b motion requesting that the submission be considered on the motion.

The Law and Governing Principles

[27] Subrule 1(8) of the Family Law Rules sets out that if a person fails to obey an order in a case, the court may make any order it considers necessary for a just determination of the matter, including:

a) An order for costs

b) An order dismissing the claim

c) An order striking out any pleading (including documents on motion to change), financial statement or any other document filed by a party.

d) An order that all or part of a document the court ordered produced, and was not, may not be used in the case

e) If the breach is by a party, that the party is not entitled to any further order in the case, unless the court orders otherwise.

f) An order postponing the trial

g) On motion, a contempt order.

[28] The wording of Rule 1(8) is also sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case, and where there has been a wilful failure to follow the Rules or obey an order in the case. See: Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.); Wreggbo v. Vinton, 2013 ONCJ 250.

[29] If a person fails to follow the rules, the court may make all of the orders listed in subrule 1(8) except a contempt order. (Subrule 1(8.1)).

[30] Rule 16(12)(iv) of the Family Law Rules provides that on motion, the court can strike pleadings if the case is a waste of time, a nuisance or an abuse of the court's process.

[31] Section 24 Child Support Guidelines provided 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 impute income.

[32] A party, whose pleadings have been struck, are no longer able to participate in the case. Caldwell v. Caldwell, [2006] O.J. No. 1469 (OCA).

[33] Rule 14(23) of the Rules provides that a party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party's case or strike out the party's answer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs.

[34] In Chiaramonte v. Chiaramonte, 2013 ONCA 641, the Ontario Court of Appeal held that in family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 2010 ONCA 92, 75 R.F.L (6th) 33, at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

"The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court."

[35] In Chiaramonte v. Chiaramonte, supra, the Court of Appeal went on to say as follows at paragraph 32 of that decision:

"Striking a party's pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way. For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v. Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way."

[36] Where children's interests are involved, the court should avoid the sanction or use utmost caution in striking pleadings because trial court needs participation of both parties and information that each can provide about best interests. See King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, C.A.). The Court of Appeal noted in Haunert-Faga v. Faga, (2005), 20 R.F.L. (6th) 293 (Ont. C.A.) at paragraph 7 that generally, it is preferable to avoid the sanction of striking pleadings where children's interests are involved.

[37] Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman, 28 R.F.L. (5th) 447 (Ont. C.A.).

[38] The Court of Appeal has also stated that in exercising the discretion to strike pleadings, a court has the jurisdiction to order the reinstatement of pleadings on conditions. In Costabile v. Costabile, 2005 CarswellOnt. 6909 (C.A.), the court upheld the lower court's decision to strike the appellant's pleadings as the judge contemplated that the appellant would have the right to move to set aside the default and to try to persuade a family court judge that his disclosure and efforts in providing disclosure justified reinstating his pleading. The Court of Appeal opined that this was a sensible resolution of the matter and given the broad discretion under the Family Court Rules, the Court also held that a family court judge had jurisdiction to make such an order.

Application of the Law and Governing Principles to the Facts of this Case

[39] In this case, despite being served with the application for custody and support on April 28, 2013, more than one year ago, and three court orders compelling financial disclosure, the respondent has failed to provide any financial disclosure, except for one sworn financial statement dated August 26, 2013, almost twelve months ago. This financial statement does not even have attached the respondent's three most recent notices of assessment, as required by the Family Law Rules.

[40] Unlike the facts before the Court of Appeal in Chiaramonte v. Chiaramonte, supra, the respondent in this case has not produced basic financial disclosure, such as: his notices of assessment from the Canada Revenue agency, his t-4 slips, his pay stubs, a year to date bank statement, bank statements for the past twelve months, credit card statements or even a letter from his employer.

[41] The respondent has refused to comply with three court orders for financial disclosure made over an eight month period. He has refused to pay the cost orders made against him. He is in arrears of child support, missing the monthly payments of support based on the arbitrary amount of $250.00 per month that he has chosen to pay. These proceedings have been ongoing now for 16 months. It is a fairly straightforward application for custody and support.

[42] The respondent is simply not taking this court proceeding or his obligations to abide by court orders seriously. In my view, giving the respondent even more opportunities to comply with the disclosure order will just prolong the process with no reasonable expectation that he will comply. Despite being self-represented, the respondent was been warned about the necessity of compliance and the consequences.

[43] I see no other realistic alternative to striking the respondent's pleadings on a without prejudice basis to being re-instated once he has fully complied with the disclosure order. This will strike the necessary balance of providing a serious consequence to the respondent's ongoing lack of compliance and still permit the father to re-argue at some time in the future that support should be based on an income different from the amount being imputed.

[44] Once the respondent's pleadings are struck, the applicant can proceed with her application on an uncontested basis.

Evidence on the Uncontested Trial

[45] The applicant has filed, in addition to her application and sworn financial statement, a sworn affidavit and a sworn Form 23 C Affidavit for an Uncontested Trial.

[46] The evidence is undisputed that the applicant has been the primary caregiver of the child since birth and that the respondent has not exercised access to the child or pursued access since July 2013, when the child was twelve months old. The respondent acknowledged this. The respondent is on the road several days a week as a result of his employment. Even if the respondent's pleadings were not struck, he did not seek custody in his answer/claim. The evidence clearly establishes that it is clearly in the child's best interests to be in the custody of the applicant. Although the respondent stated at the case conference that he was seeking custody of the child, there is no basis for an order for custody to the respondent, given his lack of participation in the child's life since the parties separated in 2012 when the child was only six months old. Further, the evidence establishes that the parties do not communicate in any meaningful way. There will be final order for custody to the applicant.

[47] The child is now two years old. The respondent has exercised sporadic access until July of 2013, always at the applicant's home in her presence. The respondent stated that he wanted this arrangement to continue, provided that he gives the applicant 24 hours' notice. The applicant does not feel comfortable with the respondent in her home and cited the respondent's anger management and control issues in her affidavit materials.

[48] Given the very young age of the child and the fact that that respondent has not seen the child since he was twelve months old, it is in the child's best interests to develop a relationship with his father in a secure and supervised setting to re-establish a relationship with him. At this point, the respondent is a stranger to him. A supervised access facility will provide that opportunity to the child and the respondent and will also provide the court with neutral and independent evidence from professionals regarding the nature of the relationship and the development of the relationship between the father and the child.

[49] Regarding the determination of the respondent's income for child support and section 7 expenses, the applicant has filed evidence where she states that during their relationship, the respondent was earning between $50,000.00 and $60,000.00 annually, with self-employment or employment income as a chartered bus and limousine driver. This included the commissions and tips that he received from customers, mostly tourists. The applicant is aware that the respondent earns significant tips and gratuities when he crosses the border with tourists.

[50] Given that the respondent's pleadings having been struck, based on the evidence before me, I find that income should be imputed at $50,000.00 and the respondent is therefore required to pay ongoing support of $450.00 commencing May 1, 2013 which is the first month after he was served with the mother's application for child support. I fix arrears at $3,500.00, taking into consideration that the father made some voluntary payments of $250.00 per month since that time.

[51] I also order that respondent pay his proportional contribution to the child's section 7 expenses, including the child's day-care expenses. The applicant has proposed that the respondent's contribution be 30 percent of the section 7 expense, which is very reasonable in the circumstances. The applicant has provided evidence that her daycare expense is $400.00 per month. The respondent's contribution therefore is $120.00 per month, commencing September 1, 2014.

[52] The applicant also seeks an order that the respondent obtain and designate the applicant as an irrevocable beneficiary on his life insurance policy with a minimum value of $150,000.00 for so long as he is obligated to pay child support. Regrettably, the Ontario Court of Justice does not have the jurisdiction to make that order, as provided under section 34(2) of the Family Law Act.

Order

[53] For the reasons above, I make the following order:

1. The respondent's answer/claim is hereby struck out, subject to paragraph 9 below. The applicant is permitted to proceed with her application on an uncontested basis.

2. The applicant mother shall have final custody of the child, Elliot Shiran Magee, born June 13, 2012.

3. The respondent father shall have supervised access to the child named above at a supervised access facility, at dates and times agreed upon by the parties, in consultation with the access facility. If the parties cannot agree on the supervised access facility, then it shall be the Burlington Access, Counselling and Family Services at 460 Brant Street, Burlington, Ontario.

4. The respondent's access to the child shall be reviewed once the father has established regular and consistent contact with the child, such that the child is comfortable in the father's presence.

5. Commencing May 1, 2013, the respondent father shall pay child support for the child named above in the amount of $450.00 per month. This is the table amount for one child based on an imputed income of $50,000.00 per annum to the respondent, in accordance with the Child Support Guidelines for the Province of Ontario.

6. Arrears under the above order are fixed at $3,500.00, to be paid at a rate of $100.00 per month, commencing September 1, 2014 until paid in full.

7. Commencing September 1, 2014, the respondent father shall also contribute to his proportional share of the child's reasonable section 7 special expenses, including the child's day-care expense, upon written notice by the mother with proof of expense. The Respondent's proportional contribution to the day-care expense is determined to be $120.00 per month and payments will commence September 1, 2014. These payments shall be paid on the first day of each month.

8. The parties shall exchange their complete income tax returns and notices of assessment, and the mother shall provide the father with all receipts for special expenses by June 30th of each year.

9. The order is made without prejudice to the respondent being permitted to bring a motion, on proper notice to the applicant, to seek to change his financial support obligations in this order, without the necessity of proving there has been a material change in his circumstances, upon providing proof to the court that he has complied with the outstanding disclosure order made on January 7, 2014 and provided he has complied with his obligation to provide ongoing financial disclosure.

10. The Respondent father shall pay the costs of this motion, inclusive and tax and disbursements fixed at $2,000.00.

11. A support deduction order shall issue.

Justice Sheilagh O'Connell

Date: August 7, 2014