Court File and Parties

Ontario Court of Justice

Date: 2015-07-31

Court File No.: Halton F373/12

Between:

Renee M. Henderson Applicant

— And —

Dion R. McClean Respondent

Before: Justice V. Starr

Heard on: June 30, 2015

Reasons for Judgment released on: July 31, 2015

Counsel

Maria Sirivar ....................................................................................... counsel for the Applicant

Dion R. McClean ............................................................................................ on his own behalf

STARR, J.:

NATURE OF THE MOTION

[1] This is the Court's decision and reasons with respect to a motion brought by the Applicant for an order striking the Respondent's pleadings due to his breach of various orders, his failure to provide financial disclosure requested by the Applicant, and for leave to proceed thereafter by way of uncontested trial.

[2] At the outset of the hearing of this motion the Respondent requested an adjournment. That request was denied with the Court's reasons delivered orally.

BACKGROUND

[3] The Applicant and the Respondent have two children of the marriage, Denver McClean, born January 1, 2008 and Reece McClean, born April 17, 2009.

[4] The children's primary residence is with the Applicant in Oakville, Ontario. The Respondent exercises access to the children. The parties have joint custody.

[5] The Respondent is a lawyer called to the bar in 2002. His area of practice includes family law. He represents himself in these proceedings.

THE EVIDENCE AND FINDINGS OF FACT

Litigation History

[6] The Applicant brought an Application which was filed with the Court on August 29, 2012.

[7] On October 2, 2013, Justice Zisman made a final order on consent that, among other things, directed that:

a. The Respondent pay child support to the Applicant in the amount of $966.00 a month commencing September 1, 2013. This final order was based upon an imputed annual income to the Respondent of $65,000.00 for 2013; and,

b. By no later than June 1st of each year, commencing on June 1, 2014, the Respondent shall provide a copy of his income tax return, as filed for the previous calendar year, to the Applicant and his Notice of Assessment upon receipt. The parties shall then determine the appropriate table amount of the Respondent's child support obligation for the applicable calendar year in accordance with the Ontario Child Support Guidelines using the income of the Respondent.

[8] On June 20, 2014, after the Respondent failed to provide the Applicant with a copy of his 2014 income tax return and after he had failed to pay his child support on time and had accumulated arrears of child support, the Applicant brought a Motion to Change.

[9] On October 28, 2014, a case conference took place before me. I ordered that the Respondent ensure that all payments of child support are made directly to the Family Responsibility Office as the order of Justice Zisman directs, with no direct payments being made to the Applicant. He had been making direct payments which resulted, on occasion, in late payment of support.

[10] In these proceedings the Respondent has asked for and been given several indulgences and extensions of deadlines. For example:

a. On June 24, 2014, Justice Zisman granted both parties permission to serve and file their respective financial statements without their Notices of Assessment;

b. On July 11, 2014, Justice Zisman granted the Respondent an extension until August 8, 2014 to serve and file his materials in response to the Motion to Change;

c. On August 19, 2014, Justice Zisman granted the Respondent a further extension to serve and file his responding materials; and

d. On September 30, 2014, I granted orders requested by the Respondent which allowed the Respondent to file his financial statement without attaching his 2013 Notice of Assessment. Of particular note, I ordered that the Respondent serve his 2013 Notice of Assessment within seven days of his receipt of same upon the Applicant.

[11] On several occasions the Respondent has failed to serve and file materials in breach of the Family Law Rules and/or orders made by this Court. Below are some examples.

[12] On September 30, 2014, I noted that the Applicant's settlement conference brief was served and filed on time whereas the Respondent's brief was not and was in fact delivered to the Court shortly before the matter was scheduled to proceed. On that same date, I advised both parties that, subject to valid excuse, in future, I was not likely to accept material presented to the Court at the last minute to read and as a result, sincere effort should be made to ensure that materials are served and filed in accordance with the Family Law Rules.

[13] For the February 12, 2015 attendance, the Applicant again served and filed a brief in advance of the attendance, including an updated sworn Financial Statement. The Respondent did not do so in accordance with the Rules.

[14] On February 12, 2015, I conducted a two-hour case conference with the parties and made an order, as it relates to financial disclosure, among other things, as follows:

a. The Applicant shall serve her notice of motion and materials for use on the motion dealing with financial disclosure only on or before March 12, 2015 and the Respondent shall serve his Notice of Motion and supporting materials on the issue of disclosure only on or before March 16, 2015. The Applicant shall be entitled to file a reply affidavit, if any, by the end of the day on March 17, 2015;

b. The parties to exchange disclosure requests; this is to be done by February 23, 2015;

c. The parties to answer any and all disclosure requests that are reasonable and relevant to either party's position and the issues. This is to be done by March 6, 2015.

[15] The Applicant received the Respondent's Request for Information on February 25, 2015, two days after the date it was to be provided.

[16] The Respondent did not serve and file his Response to the Applicant's Request for Information in accordance with the deadline stipulated in my order.

[17] The Respondent also failed to serve and file any responding materials to the Applicant's motion for disclosure in accordance with the deadline stipulated in my order.

[18] Instead of complying with my order with respect to responding to the Applicant's request for disclosure and instead of complying with the deadline in my order for service and filing of his materials in response to this motion, he sent a copy to the Applicant the afternoon before the hearing of this motion (March 18, 2015).

[19] The Applicant's motion for disclosure proceeded on March 19, 2015. At that time, the Respondent, who had not filed his responding materials, walked a copy into court on March 19, 2015 asking for leave to file it. The Respondent explained that the materials were late due to some difficulty in obtaining the material from the firm he works for and other commitments.

[20] I released my written decision and reasons on March 25, 2015. I found that he had breached the orders. I ordered the Respondent to provide extensive financial disclosure to the Applicant. I adjourned the matter to May 8, 2015 to deal with the issue of costs and for a settlement conference as had been directed in my order of February 12, 2015.

[21] Despite the timelines and the April 27, 2015 deadline for the Respondent to provide the last item of disclosure he was ordered to provide to the Applicant in my March 25, 2015 order, when the matter came before me on May 8, 2015, I learned that the Respondent had not provided the Applicant with any of the disclosure I had ordered him to provide. I dealt with the issue of costs from the March 19, 2015 and ordered the Respondent to pay costs to the Applicant of the motion heard on March 19, 2015 fixed in the amount of $1,500 and payable within 30 days. I also proceeded to set June 30, 2015 as the date for the hearing of the Applicant's proposed motion to strike the Respondent's pleadings.

[22] In my endorsement of May 8, 2015, I commented as follows:

This is the fourteenth attendance on this matter and this matter is before the Court today for a settlement conference. The Applicant has filed a settlement conference brief, the Respondent has not. The Respondent has also not complied with my last order in terms of disclosure. He indicates that he is working on the disclosure and should have it ready soon. He advises that he has brought a motion, but the material is not filed, asking for an extension of time.

[23] The Applicant brought this motion – her motion to strike the Respondent's pleadings - by way of Notice of Motion dated June 18, 2015. In support of her motion she filed an affidavit sworn by her on June 18, 2015. She also submitted a factum dated June 18, 2015. These materials were all served on the Respondent on June 18, 2015.

[24] The Respondent filed no responding materials to the motion. He advised the court from the floor that he had most of the material ready but there had been some challenges. He asked for the motion to be adjourned. When asked if he had provided any of the disclosure he claimed was ready to the Applicant, he said, no. When asked if he had brought whatever documents were ready with him to court that day, he said, no.

The Respondent's Breach of Orders and Rules

[25] On April 9, 2013, Justice O'Connell ordered, on consent that the Respondent provide the Applicant with copies of his personal and business bank account statements from January 2011 to date, copies of all credit card invoices from January 2011 to date and a list of all job applications he had made to find employment. The Respondent is in breach of this order as to date, he has not provided all of the disclosure ordered.

[26] On October 2, 2013, Justice Zisman ordered that "no later than June 1st of each year, commencing on June 1, 2014, the Respondent shall provide a copy of his income tax return, as filed for the previous calendar year, to the Applicant and his Notice of Assessment upon receipt. The Respondent is in breach of this order.

[27] On February 23, 2015, the Applicant requested financial disclosure from the Respondent by way of a Request for Information pursuant to the Order of Justice Starr dated February 12, 2015. The Applicant has not received the financial disclosure requested by her and/or required by the Family Law Rules, the Child Support Guidelines.

[28] Since the Applicant brought the Motion to Change on June 20, 2014, the Respondent has only provided the following financial disclosure:

a. A copy of page 3 of his Notice of Assessment for 2011;

b. A copy of page 2 of his Notice of Assessment for 2012;

c. A copy of page 3 of his Notice of Assessment for 2013 (he provided this on February 12, 2015 even though the Notice was dated October 6, 2014 and was to have been provided to the Applicant within seven days of receipt pursuant to the court order);

d. A copy of Three 60Legal Vendor Ledger with handwritten title "Income Chart" and handwritten Total Income for 2013 $18,637.00

e. A copy of Account Inquiry Results with handwritten title "Legal Aid-Income Chart"- three pages with last page showing a handwritten note Grand total 34,046.77;

f. A copy of Information Return for Electronic Filing of an Individual's Income Tax and Benefit Return 1 page;

g. A copy of Statement of Business or Professional Activities – six pages.

h. A copy of a letter from Three 60 Legal, Vendor ledger (from Three 60 Legal) and Legal Aid Payment Summary/History (Exhibit H of the Respondent's Affidavit sworn October 8, 2014-CR. Vol. 2 Tab 12).

[29] The disclosure that has been provided by the Respondent is not adequate to allow either the Court or the Applicant to ascertain a true picture of his financial situation.

[30] As of the hearing of this motion on June 30, 2015, the Respondent had not:

a. Provided the Applicant with any financial disclosure pursuant to the Orders of the Honourable Madam Justices Zisman and Starr dated October 2, 2013 and March 25, 2015, respectively; and

b. Paid the costs of $1,500.00 to the Applicant pursuant to the Order of the Honourable Madam Justice Starr dated May 8, 2015;

[31] The Respondent does not make child support payments as required by the order of Justice R. Zisman dated October 2, 2013 and the Applicant has had to rely on enforcement through the Family Responsibility Office to obtain child support pursuant to the child support guidelines. At the time the Applicant brought the initial Motion to Change to the court, the Respondent had stopped paying child support as he agreed to.

[32] In the Applicant's Change Information Form sworn June 20, 2014, the Applicant states that at the time the Applicant brought the Motion to Change dated June 20, 2014, the Respondent owed the sum (estimated) of $3,617.00 in support arrears.

[33] On October 28, 2014, I ordered the Respondent to ensure that all child support payments were made directly to the Family Responsibility Plan.

[34] In December 2014 the support arrears had accrued to over $8,000.00; the Respondent made a support payment to FRO to satisfy the arrears on or about December 3, 2014. The support arrears began to accrue again in February 2015 and by the beginning of June 2015, the Respondent owed the sum of $4,237.99. On or about June 10, 2015, a payment of $3,271.99 was made to FRO leaving a balance of $966.00 on account of arrears. The Respondent is therefore in breach of the support orders made.

[35] Further, although the Respondent has, in his October 8, 2014 affidavit, indicated his agreement in accordance with the court order dated October 2, 2013 to contribute to at least one activity a season for the children and that he has no issue sharing the cost equally with the Applicant for certain activities listed in her financial statement, to date he has not contributed or indicated which activities for which he will cost share.

THE LAW AND GOVERNING PRINCIPLES

[36] This proceeding is governed by the Family Law Rules, as well as the Family Law Act and Child Support Guidelines (" the Guidelines ").

[37] Section 24 of the Guidelines provide 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.

[38] 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.

[39] 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. The phrase "just determination" is sufficiently wide to include protecting the integrity of the administration of justice, and that is what is at stake if a party willfully disobeys an order. See: Hughes v. Hughes, [2007] O.J. No. 1282, 85 O.R. (3d) 505 (Ont. SCJ); Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.); Wreggbo v. Vinton, 2013 ONCJ 250.

[40] Subrule 1(8.4) of the Rules sets out the following as the consequences of striking out certain documents:

1(8.4) If an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party's absence.

4. A date may be set for an uncontested trial of the case.

[41] Simply put, a party whose pleadings have been struck is no longer able to participate in the case: see Caldwell v. Caldwell, [2006] O.J. No. 1469 (Ont. C.A.).

[42] With respect to the Court's use of its power to strike out a party's pleadings, counsel referred me to a number of cases: D.D v H.D., 2015 ONCA 409; Roberts v Roberts, 2015 ONCA 450; Hughes v Hughes ON SC; Vetro v Vetro, 2013 ONCA 303; Levely v Levely, 2013onsc1026; Bourassa v. Magee, 2014 ONCJ 393; Abdirizak v Said, 2015 ONCJ 306; Mason v Blanchard, 2014 ONCJ 409; Wentges v. Faiz, 2014 ONSC 3583; Parham v. Jiang, 2014 ONSC 3293. I have reviewed and considered each of these along with each party's written submissions, submitted after the hearing on my direction.

[43] I am guided primarily by the principles enunciated by the Ontario Court of Appeal in a number of cases. Those principles are well summarized by O'Connell, J. in the very recent case of Lahey v. Gauthier, 2015 ONCJ 393 at paragraphs 41 – 46:

41. In a number of decisions, the Ontario Court of Appeal has made it clear that the power to strike out a party's pleadings should be used sparingly and only in exceptional cases. See Roberts v. Roberts, 2015 ONCA 450, [2015] O.J. No. 3236, 2015 CarswellOnt 9247 (Ont. C.A.). In Chiaramonte v. Chiaramonte, 2013 ONCA 641 (Ont. C.A.), the Court 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, following the court's decision in Purcaru v. Purcaru, 2010 ONCA 92, 2010 ONCA 92, 75 R.F.L (6th) 33, at paragraph 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, supra, at paragraph 49 of that decision:

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.

42. 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.

43. Where custody and access 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. A full evidentiary record, including the participation of both parties, is generally required to make a custody decision in the best interests of the children. See King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, (Ont. C.A.), cited with approval in D.D. v. H.D., [2015], O.J. No. 2959 (Ont. C.A.), and Haunert-Faga v. Faga 2005 39324 (Ont. C.A.), (2005), 20 R.F.L. (6th) 293 (Ont. C.A.)

44. Further, in Kovachis v. Kovachis, 2013 ONCA 663, the court held that on a motion to strike a party's pleadings in the family law case because of non-compliance with court orders, the court must consider whether the default is willful and whether striking the pleadings is the only appropriate remedy.

45. 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 (Ont. 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 Law Rules, the Court also held that a family court judge had jurisdiction to make such an order.

46. 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 (2002), 28 R.F.L. (5th) 447 (Ont. C.A.). Further, before striking a pleading for failure to pay support, the court must consider a payor's financial circumstances and his or her ability to pay support. See Higgins v. Higgins, [2006] O.J. No. 3913 (Ont. C.A.). Courts have also given a party the opportunity to restore the pleading if arrears of support are paid. See Stein v. Stein, [2003] O.J. No. 2288 (Ont. C.A.).

[44] I have also considered my duty as the case management judge to manage this case in a manner that is just, which includes ensuring that the process is fair and proportionate to the nature of the dispute and the interests involved. In doing so, I am guided by Subrules 2(2) to 2(5) Rule 2 of the Family Law Rules which states:

2. Primary objective.-- The primary objective of these rules is to enable the court to deal with cases justly.

3. Dealing with cases justly.-- 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. O. Reg. 114/99, r. 2(3).

4. Duty to promote primary objective.-- The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2(4).

5. Duty to manage cases.-- The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[45] As pointed out at paragraph 12 of the decision of Chappel, J. in the case of Levely v. Levely, 2013 ONSC 1026, (Ont. S.C.J), the Court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

APPLICATION OF THE LAW AND GOVERNING PRINCIPLES TO THE FACTS OF THIS CASE

[46] The litigation history, the forgoing findings, the Applicant's evidence, and this Court's previous findings in Henderson v. McClean, 2015 ONCJ 244, all show that the Respondent has:

a. Failed to provide the Applicant with the financial disclosure he was ordered to provide pursuant to the Orders of Justice Zisman dated October 2, 2013;

b. Failed to comply with his ongoing disclosure obligations under the Family Law Rules, Child Support Guidelines, the Family Law Act, and in the jurisprudence, the details of such failings are set out above and in my previous decision in this matter: Henderson v. McClean, supra;

c. Has shown repeated disregard for timelines set out in the orders of this Court and in the Family Law Rules. See the findings set out in my previous decision, Henderson v. McClean, supra;

d. Failed to pay child support on time;

e. Ignored the Applicant's requests for disclosure in some instances, and, in others provided her with incomplete disclosure in other instances;

[47] This Court's decision released on March 25, 2015 was a turning point in the Court's approach to the Respondent's unreasonable conduct. It was at that time that this Court moved from indulgence and chastisement of the Respondent for failing to follow the rules and court orders to the next level. The decision of March 25, 2015 warned the Respondent of the consequence that would follow if he breached that order – that his pleadings would be struck. At paragraphs 20, 85, 88, 89, and 95, this Court notes:

20 In the Court's view, allowing him to once again circumvent the Rules and breach a court order, without consequence and to the disadvantage of the Applicant, would not foster continued respect for this Court and the Rules that govern it.

85 In the Court's view, the game it is beginning to look like the Respondent is playing is one of "Hide and Seek." While there was a time when such a litigation strategy was commonly used, such games and litigation strategy has not been tolerated in family law for decades, fly in the face of the spirit and primary objective of the Family Law Rules and Child Support Guidelines; and certainly have no place in cases where the right of the child to be supported financially is at issue.

88 I find that the Respondent has acted unreasonably by failing to make timely, complete and full disclosure and by repeatedly failing to follow orders and the Family Law Rules. I further find that, in so doing, he has prevented the Applicant both from being able to assess the merits of pursuing the financial relief she seeks; from properly preparing her case and obtaining relief in a timely fashion; and has put her to the unnecessary expense associated with making repeated requests for disclosure both in and out of court, including this motion.

89 This is not the first time that the Court has found the Respondent's behaviour to have fallen below what is expected of him, that he has wasted the Applicant's and the Court's time. On August 29, 2015, Justice Zisman noted in her Endorsement as follows:

I wish to note that despite Mr. McClean not following the orders that were made and deliberately misleading representations to the Court on August 12, 2014, regarding his ability to obtain the children's passports immediately (that day) nevertheless the passports have been filed and are being released and all original documents returned to Ms. Henderson. It is unfortunate that Mr. McClean has wasted the Court's time and Ms. Henderson's time.

95 Should the Respondent fail to provide any of the forgoing or should he fail to do so within the timelines set out in this Order, without leave of the Court obtained in advance and on notice to the Applicant, the Applicant has leave to bring a motion on notice to the Respondent, to have his pleadings struck or to avail herself of any other remedies for non-compliance that may be available.

[48] In addition to granting the Applicant leave to bring a motion to strike the Respondent's pleadings if he failed to comply with the disclosure order, the Court also imposed a further sanction – it awarded the Applicant $1,500 in costs.

[49] Nothing has worked. Absolutely nothing. The Respondent has now breached two further orders. He has breached the March 25, 2015 order made by this Court. He has done so by failing to provide the disclosure he was ordered to provide pursuant to that order. He has breached the May 8, 2015, order by failing to pay the $1,500 in costs that he was ordered to pay to the Applicant within 30 days pursuant to that order.

[50] In his defense the Respondent submits:

a. This is not a case where he has made no disclosure;

b. The order this court made for disclosure is on March 25, 2015 is extensive and time consuming to fulfill. He has been able to get a handle on a number of items he was ordered to produce on March 25, 2015 but not all. The biggest challenge is the receipts and invoices for 2013, 2012, 2014 and 2015 to present. This is because the 2014 items are in storage and he is working on the 2014 and 2015 to present invoices. In the process of putting these together the firm discovered some accounting errors (he is paid on a percentage basis which percentage depends on whether the firm refers the file or he refers the file; and the firm takes a percentage of his Legal Aid billings and billings as duty counsel). The problem is that the firm has not been taking out the HST on the files which skews the numbers, his income and HST remittance. They are going over their accounting so they have an accurate report.

c. He has received his account receivables, his billable hours, monies collected, and has a letter from the firm that sets out his percentage of the breakdown. What is not included in the letter is the percentage breakdown for legal aid and duty counsel work;

d. He is having some difficulty getting an affidavit from a person at H & R Block.

e. He thinks he will be able to have everything ready in a week or two.

[51] As the Applicant correctly points out:

a. None of what the Respondent submitted at the hearing is in evidence;

b. He has provided no excuse for not paying his child support on time or and for falling in arrears and he has not provided any excuse whatsoever for not paying the costs awarded.

c. He has already had 3 months to comply fully with the March 25, 2015 order;

d. Despite the fact that he says he has some of the items, he has not provided even those portions of the disclosure that he claims he has;

e. The Respondent has essentially been in "radio silence" with respect to the disclosure issues and did not make any effort to advise the Applicant of his progress or challenges or requested an adjournment prior to the hearing date;

f. The Respondent did not give notice, as he could have by 14C, that he was having issues, needed more time, or would be seeking an adjournment of this hearing.

g. He has not come to Court putting his best foot forward.

[52] I agree with the Applicant. If the Respondent was sincere and acting in good faith, he would have taken the forgoing steps or, at the very least, paid the $1,500 in costs that he was ordered to pay. I agree with the Applicant that the only conclusion one can draw from the Respondent's behaviour, or lack thereof, is that he is simply not taking this court proceeding or his obligation to abide by court orders seriously. I can reach no other conclusion but that his non-compliance with the court orders is willful.

[53] The Respondent's second argument is that, at least on the parenting issues, he has followed the orders of the court. Further, not all of the court attendances, adjournments and extensions of time he has asked for have related to the financial issues. Although I accept this submission, what he is really saying is that the seriousness of his egregious behaviour and conduct on the financial issues is mitigated by his more positive conduct on the parenting issues. It is not. What the Respondent has clearly demonstrated is that he is somewhat prepared to follow the rules and orders when they suit him or advance his interests in the litigation.

[54] I have absolutely no doubt whatsoever that this is an appropriate case to strike the Respondent's pleadings. The only real issue is whether to grant the Applicant's request to strike them in their entirety, or, limit what is struck, to his pleadings on the financial issues.

[55] The Respondent argues that if this Court strikes his pleadings, it should only strike those portions that relate to his financial claims because there are still live issues related to the best interests of the children that need to be determined and his participation is necessary for such a determination. I am not persuaded by this argument.

[56] This is not a case where the best interests of the children will be compromised if the Respondent's pleadings are struck in their entirety and the Applicant allowed proceed to an uncontested trial on all of the claims set out in her Motion to Change. In her Motion to Change the relief that the Applicant seeks that properly falls within the domain of "custody and access" as opposed to "financial issues" is limited. The relief sought is in the nature of "tweaking" and "clarifying" the existing access orders. What she wants is an order that spells out the obvious - what is implicit in every access order. For example, she wants an order that the Respondent ensure:

a. They are in proper car seats when travelling in a motor vehicle;

b. The children wear appropriate safety gear such as helmets when participating in activities such as roller-blading and skating;

c. The children are supervised by a responsible adult at all times;

d. The children have appropriate sleeping arrangements if away from the Respondent's home.

[57] In her Motion to Change the Applicant also seeks an order that the Respondent is required to advise her if there are any incidents that take place while the children are in the Respondent's care that involve the health or safety of the children, when he returns them to her. This too I consider implicit in the existing order which gives the parties joint custody and in any event, is central to the well-being of children – both parents should be told by the other if any critical safety or health issues arises at the first opportunity such as when the children are returned to the other parent. The Applicant also seeks an order that the Respondent will not enter the place where she resides currently or may in future reside, without her consent. Again, this should go without saying. The Court does not need the Respondent's participation in the case to determine that these things are in the children's best interests.

[58] The only order in her Motion to Change that does not fall within the category of the obvious is the Applicant's request that the Respondent advise her of the children's whereabouts and planned activities during his overnight access, before his visits occur and that he advise her of any changes in his plans, if the visits are not going to occur at his residence, including where and with whom the children are going to be with and how the Applicant can reach the children. While intrusive to the Respondent and clearly not in his best interests if granted, it is hard to imagine how requiring him to take such a step would be contrary to the best interests of the children. This is not a serious or significant issue.

[59] I have also considered whether striking the Respondent's Response to Motion to Change sworn August 26, 2015 would compromise the best interests of the children. I find that it would not because the Respondent's Response to Motion to Change does not set out any real claim for relief other than a request that the Applicant's claims be dismissed with costs and an extension of time to serve and file an affidavit in support of the Respondent's Response to motion to Change - an affidavit identified as having been sworn for that purpose has not been served and filed in the Continuing Record in the year that these proceedings have been before the Court. It contains no other prose.

[60] In reaching my decision I have also considered the fact that there is still some time for the Respondent to fully comply with the court orders that have been made. Once these reasons are released the Applicant intends to proceed by way of 23C for a final order on the parenting issues and upon the retroactive child support issue. Although it may not take her very long to get that material ready or for the court to make its final decision on the issues, it will still take some time. If the Respondent was being sincere on June 30, 2015, when he advised the court that he only needed about two more weeks to be in a position to fully comply with the orders, then by now he should be in a position to do so as he has in effect been given another month's extension, bringing the total time that he has had since the March 25, 2015 order to four months. In other words, he should be in a position to bring a motion to have his pleadings reinstated right away.

[61] Finally, I have considered my duty to deal with this case justly. If I only strike the Respondent's financial pleadings and allow him to participate in defending against the Applicant's parenting claims and to pursue his own concerns as they relate to the parenting of the children, he is, in essence, rewarded for his behaviour. I say this because if this happens, he will be able to deal with all of the issues that matter to him, while, at the same time, by reason of his own misconduct, precluding the Respondent from dealing with all of the issues that matter to her. Such a result would be neither fair nor just.

[62] Given all of the foregoing this is one of those exceptional cases where the Respondent's pleadings and all documents filed by him in these proceedings should be struck in their entirety. This is the only way I can see to:

a. Ensure that the Respondent does not profit from his misconduct by preventing the Applicant from obtaining the evidence she needs, and the Court needs, to ascertain his true income for child support purposes;

b. Ensure the children's right to be properly supported financially is protected;

c. Sanction the Respondent's behaviour. As noted by Justice Zisman in the case of Mason v. Blanchford, 2013 ONCJ 394: "Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round is the all too common casual approach to compliance with court orders".

d. Prevent further delay in the timely adjudication of the issues as well unnecessary expense to the Applicant who is, along with the children, in effect subsidizing the Respondent's litigation choices; and,

e. Prevent further victimization of the Applicant.

[63] The only way I see to strike the balance between these objectives, the Respondent's right to participate in the adversarial process so as to prevent injustice to him, and the Court's goal of promoting the best interests of his children through adequate child support and appropriate custody and access orders, is to craft a an order that persuades the Respondent to comply with the court orders. In this case this is achieved by striking his pleadings in their entirety but on a without prejudice basis to his right to:

a. Seek, on motion made on notice, to have them re-instated once he has fully complied with the court orders that have been made. This will strike the necessary balance of providing a serious consequence to the Respondent's ongoing lack of compliance and still permit him, should he do so quickly, to participate in these proceedings before they are concluded; or,

b. Reassert the relief he wishes to seek vis-á-vis custody and access at a future date without having to prove a material change in circumstances.

[64] There is one further issue and it arises out of the Applicant's intention to amend her Motion to Change to seek a change in child support based upon an imputed income to the Respondent of $100,000 as well as additional and far more significant changes to the existing custody and access orders. She submits that she plans to move, by way of uncontested trial on the claims set out in her current Motion to Change and to serve her amended Motion to Change upon the Respondent. She asks that I prohibit the Respondent from defending or responding to the amended claims and from participating in the proceedings that flow from any such amendments until he is able to demonstrate that he is in full compliance with the orders.

[65] I have reviewed the proposed amendments set out in her Notice of Motion dated June 18, 2015, including the orders she seeks as set out in Schedule A to her Notice of Motion. The relief the Applicant intends to seek by way of amendment to her motion to change as set out in Schedule A is extensive and substantive – Schedule A is a prayer for relief that goes on for 5 single spaced pages. The relief sought includes a change in the parenting regime from joint to sole custody.

[66] I am not prepared or able at this time to conclude that the Respondent's participation in that leg of the proceedings, should the Applicant actually amend her Motion to Change, is not required for a proper determination of what is in the best interests of the children. In my view the Applicant's request that the Respondent be precluded from participating and responding to the very substantive relief she intends to seek in relation to custody and access is also premature and excessive.

[67] What is fair and appropriate and what strikes the right balance with respect to future claims by either party is for the court to:

a. Revisit the issue of whether the Respondent's amended pleadings should be struck, if and when they are served and filed;

b. Limit the Respondent's ability to respond and participate in the adjudication of the financial claims that arise out of the amended motion to change until he has demonstrated that he is in full compliance with the existing orders; and,

c. Limit the Respondent's ability to seek any further relief, be it by motion or separate proceedings, until he has demonstrated that he is in compliance with the existing orders.

ORDER

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

1. The Respondent may not initiate any further family law motions or other family law proceedings involving the Applicant or the children and he may not make any new claims for relief in these proceedings without leave of the Court obtained in advance and upon notice to the Applicant, such as in the event that the children's immediate health and safety is at serious risk of harm and the Court's intervention is necessary to protect them from such risk. This is order is without prejudice to the Respondent's right to have it set aside upon satisfying the Court by way of affidavit that:

a. He has fully complied with the disclosure terms set out in the order dated March 25, 2015, the costs order of May 8, 2015 or any other cost ordered against him in these proceedings; and

b. Provided proof that he has paid all of the support owing to the Application pursuant to the terms of any existing orders; and

2. The Respondent's Response to the Applicant's Motion to Change dated June 20, 2014 and all documents filed by the Respondent in relation to the Motion to Change or his Response to Motion to Change are struck. This order is made without prejudice to the Respondent being permitted, at any time up to the time when any claim made by the Applicant in her existing motion to change is decided on a final basis, to bring a motion, on proper notice to the Applicant, seeking to have his pleadings reinstated, on proof that:

a. He has fully complied with the disclosure terms set out in the order dated March 25, 2015 and the costs order of May 8, 2015; and

b. He has paid all of the support owing to the Applicant pursuant to the terms of any existing orders; and

c. He has paid any further costs awarded to the Applicant as of the date he seeks reinstatement.

The affidavit that the Respondent submits in support of any such motion shall confirm that he has complied with said orders and attach proof of said compliance.

3. The Applicant is permitted to proceed with the claims set out in her existing Motion to Change on an uncontested basis.

4. The Applicant is granted leave to amend her Motion to Change dated June 20, 2014 to include claims for the following orders:

a. The Respondent's gross annual income be imputed at $100,000.00 and the Respondent pay the Applicant child support in the amount of $1,416.00 per month for the children, Denver Caitlin McClean, born January 12, 2008 and Reece Hille McClean, born April 17, 2009, ("the children") based on that income, commencing July 1, 2014 and every month thereafter; and

b. Changes to the custody and access orders dated April 9, 2013 and October 2, 2013 and the new orders as set out in Schedule A to her Notice of Motion dated June 18, 2015.

5. Service of any amended Motion to Change or further materials in support of any amended Motion to Change on the Respondent shall be by sending a copy by regular mail to the Respondent's address for service or by way of email to dion.mcclean@rogers.com.

6. The Respondent is precluded from defending the claims referred to in paragraph 4(a) herein (imputation of income and child support), unless he has fully complied with the terms of the orders of Justice V. Starr dated March 25, 2015 and May 8, 2015 and any subsequent cost orders made by this Court against him. Further, he shall only be permitted to do so if he obtains leave of the Court in advance. Leave is to be obtained by way of motion made on notice to the Applicant and the affidavit that the Respondent submits in support of any such motion shall confirm that he has complied with said orders and attach proof of said compliance.

7. This matter is adjourned to September 2, 2015 at 2:30 p.m.

8. If the issue of the Applicant's costs of this motion are not dealt with at the attendance later today, then the only issue to be dealt with on September 2, 2015 will be the issue of costs. The Respondent is granted leave to make submissions with respect to the issue of costs.

9. If the issue of costs is dealt with later today then the September 2, 2015 date shall be set for case conference.

Released: July 31, 2015

Signed: "Justice Victoria Starr"