Court File and Parties

Ontario Court of Justice

Date: 2015-11-24

Court File No.: Toronto DFO-08-10653

Between:

Aliza Neger Applicant

— And —

Steve Dalfen Respondent

Before: Justice E. B. Murray

Heard on: November 12, 2015

Reasons for Judgment released on: November 24, 2015

Counsel:

• Mr. Jason Gottlieb, counsel for the applicant
• Mr. Steve Dalfen, on his own behalf

Judgment

Murray, E. B. J.:

Background

[1] Aliza Neger (Mother) and Steve Dalfen (Father) are the parents of a daughter, R.L., born May 1, 2005. They have been litigating arrangements with respect to R.L. for several years. The case is aptly described as "high conflict". Justice Cohen has sent the case on to trial, and has provided that Father may not bring further motions without leave of the court. A trial date in the new year will be scheduled at the assignment court in January 2016.

[2] The current consent order of February 11, 2010 provides as follows:

• R.L. is in the custody of Mother.
• R.L. is with Father on week one on Tuesday from after school to 7:30 p.m., on week two on Tuesdays and Thursdays from after school to 7:30 p.m., and on Friday after school until Monday morning, as well as vacation and holiday access and access as otherwise agreed in writing.[1]
• Father shall pay child support in a table amount of $200 monthly based on an annual income of $24,000.
• The parties "shall share special and extraordinary costs in proportion to their income", and shall exchange income information and particulars with respect to s. 7 expenses by May 1 of each year.

[3] It is unclear whether the pleadings reflect what relief the parties will request at trial. It appears that Mother is asking that Father's access be supervised and that child support be changed to reflect Father's current Guideline income, and that Father is asking that there be an order for joint custody, that his time with R.L. be extended, and that his support obligation be reduced and arrears rescinded because of decreased income in the past 3 years.

Relief Sought

[4] Mother brings a motion requesting the following relief:

• An order eliminating R.L.'s mid-week access to Father;
• An order regulating access transfers to provide that:
  • Except for school vacation periods, Father shall pick up the child at Lawrence Heights Community Centre at Lawrence and the Allen, and return the child to on Monday mornings to Glen Park Public School, and
  • During school vacations, Father shall pick up from and return the child to Mother at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence.
• An order for police enforcement of access terms;
• An order that Father pay $6,700, which is 50% of the child's expenses for Hebrew tutoring from September 2014 to June 2015 ($3,000); for tuition at Associated Hebrew School from September 2011 to June 2015 ($3,000); and for summer camp programs in the summer of 2015 ($700);
• An order striking Father's pleadings for failure to comply with the disclosure order of June 2, 2015.

[5] The motion is opposed by Father.

[6] My decision on the motion is set out below.

Strike Father's Pleadings?

[7] On June 2, 2015 Justice Cohen ordered that Father produce the following disclosure before the return date of July 20, 2015:

• Tax returns and Notices of Assessment for 2012-2014
• Bank statements and credit card statements for the year 2014
• Applications for credit and the particulars of any loan applied for.

[8] Justice Cohen found on July 20, 2015 that Father had not complied with this order. Father does not deny this; he has still not produced any of the disclosure ordered. Father alleges that Mother has not complied with other court orders in the past, and seems to feel that this should give him a "pass" on complying with the disclosure order.

[9] Rule 1(8) of the Family Law Rules, set out below, gives the court a broad discretion as to how to deal with a failure by a party to obey a court order or to follow the Rules.

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

Failure to Follow Rules

1(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g).

[10] In addition, section 24 of the Child Support Guidelines provides that where a party has failed to comply with an order for disclosure of the documents required in the Guidelines, the court may strike that party's pleadings.

[11] Striking of pleadings is a very serious remedy, and should only be pursued as a last resort.[2] The result of an order striking pleadings is the termination of the party's right to participate in the case in any way. Other ways to gain compliance with an order should be explored before an order is made to strike a party's pleadings. In this case, other methods to gain compliance have been ineffective. Father was given a further chance to comply with the disclosure order, and he has not done so. He has failed to comply with an order for costs made on a previous motion.

[12] A court considering a motion to strike because of non-compliance with a disclosure order should consider the "importance or materiality" of the items not produced in relation to the issues in the case.[3] Here, the items not produced represent basic disclosure required by the court and Mother to deal with the issue of child support. Father has produced nothing. This is not a case in which a party has produced most (but not all) of the disclosure relevant to the issue before the court.

[13] Even in cases in which striking pleadings appears to be the appropriate order, courts often give a party in breach of a disclosure order a further opportunity to comply, on appropriate terms.

[14] I am allowing Father a further opportunity to comply with the order of June 2, 2015. He shall serve and file all the documents ordered on or before December 22, 2015, failing which I will make an order striking his pleadings with respect to the issue of child support, prospective and retroactive. If Father fails to comply, Mother may apply by 14b motion requesting the order. If Father alleges that he has complied (e.g., that he has served and filed, but evidence of this has not reached me), he shall serve and file an affidavit in response to the 14b motion within 4 days of service of Mother's 14b motion on him, attaching proof of compliance.

[15] I do not at this time consider that it would be proper to consider striking Father's pleadings with respect to the issues of custody and access because they involve the best interests of R.L. as regards her relationship with Father. The Ontario Court of Appeal has repeatedly cautioned against striking pleadings on these issues in all but the most extreme cases.[4]

Section 7 Expenses

[16] Although the current order provides that the parties shall pay s.7 expenses in proportion to income, it does not address how a disagreement as to allowable s. 7 expenses is to be addressed. Absent specific provisions in a court order or agreement, the court must be guided by the provisions of s. 7 of the Guidelines when resolving such disagreements, and assess whether the expense is necessary in relation to the child's best interests and reasonable as regards the parties' circumstances. Here the court must also assess whether the expenses are "extraordinary" as contemplated by s. 7 (1.1). In this case, the relevant questions for me to answer include the following:

• Were expenses for camp, Associated Hebrew School, and Hebrew tutoring "necessary" in relation to R.L.'s needs and her best interests? Father's affidavit of August 25, 2015 indicates that he wished R.L. to attend Associated Hebrew School. Otherwise, there is no evidence that speaks to this question.

• Are these reasonable expenses, given the parties' circumstances? The only evidence I have indicates that Mother is supported by social assistance, and Father's income is $24,000 annually, or perhaps less. I appreciate that Father has not complied with financial disclosure orders, but also note that I was not presented with evidence suggesting that his income was in excess of that figure.

• Did Mother ask Father to contribute to these expenses, and did he unreasonably refuse? This is relevant with respect to the retroactive claims. I have no evidence that Mother requested a contribution prior to this motion.

[17] Given the absence of evidence, I dismiss Mother's claim for s. 7 expenses, without prejudice to her renewing the claim at trial on better evidence.

R.L.'s Access to Father

[18] Mother asks for an order eliminating the mid-week access, specifying transfer locations for access, and requesting police assistance to enforce this order. She gives several reasons for these requests:

• Father has regularly cancelled access visits.
• Father has frequently (starting in August 2015, after he was unsuccessful on his motion to extend access) refused to return R.L. to Mother at the scheduled time.
• Father has insisted that Mother come to his house to pick up the child, despite her fears for her personal security and despite Father's own claims that he has concerns for his security related to Mother. In doing this, Father has reneged on a transfer arrangement in place for over a year, that the transfer (when not at school or camp) take place at the Second Cup at Bathurst and Lawrence, near Mother's home. (Mother relies on public transportation).
• Father has involved the child in conflicts about transfers and scheduling, and this has caused her emotional distress.
• In addition, Mother is unable to schedule after-school activities for R.L., because Father refuses to take her to such activities.

[19] Mother also asks that, during the school year, Father pick R.L. up not from school but from Lawrence Heights Community Centre. She has registered the child in an after-school recreation program there, a free program operated by Toronto Parks and Recreation, to which she is escorted after school by program staff. The requirements for a child to participate in the program are that she attend every day, Monday to Friday. The program is scheduled for 3:30-5:30 p.m., but a child can be picked up on any day after the beginning of the program at 3:30. Mother says that she needs affordable after-school care for R.L., to allow Mother to attend school and participate in her field placement. Mother says that the centre is actually a better pick-up location than the school, as it is more convenient to public transportation.

[20] Father submits that this is yet another ploy by Mother to eliminate or marginalize him in R.L.'s life. He points out that no court order specifies where access transfers should take place. He says that he was agreeable to the transfer at the Second Cup near Mother's home when he was able to drive, but now his license is suspended. He says that the disputes over the past 3 months about the transfer point result from Mother's assumption that she can dictate where transfers take place. Father proposes that he pick R.L. up from school or, on non-school days, from a spot near Mother's residence and that Mother retrieve the child from a California Sandwich shop near his residence; he does not specify the address.

Father objects to picking R.L. up from Lawrence Heights Community Centre. He says that pick-up at the school allows him to talk with R.L.'s teachers. He is afraid that that pick-up location will interfere with him enjoying a snack with the child before her voice lessons scheduled for 4:45 p.m.

[21] A clear direction about where access transfers are to take place must be set out for and adhered to by these parents. The chaos which has resulted from lack of clarity on this point has contributed to the already high conflict of this case, and, undoubtedly, has affected R.L. Justice Cohen in her August 4, 2015 decision observed that R.L. has had academic and behavioural problems at school that likely result from the level of hostility in this litigation.

[22] Both Justice Cohen and, I understand, the clinical investigator from the Office of the Children's Lawyer, have opined that transfers of R.L. should be done in a public location.

[23] The parties are about to go to trial on the issues of custody and access; a trial judge will be able to get a fuller understanding of the complicated dynamics of this family and how R.L. is affected by those dynamics. A trial judge will be able to consider the value of extra-curricular activities to the child, and determine whether R.L.'s participation in such activities requires a change in the time she spends with either parent. I am not of the opinion that R.L.'s mid-week access to Father should be eliminated on a temporary motion—provided that a peaceful and orderly exchange during the week can be achieved.

[24] I am also not of the view that an order should be made for police to enforce any transfer schedule. I agree with Justice Alex Pazaratz, who in Patterson v. Powell, 2014 ONSC 1419, was eloquent in his criticism of a request for police enforcement on an ongoing basis of the access schedule in a high-conflict case. Justice Pazaratz held that the provisions authorizing such assistance in section 36 of the Children's Law Reform Act were enacted to deal with specific emergency situations in which a child was withheld from the custodial parent, not to supervise day-to-day access transfers. Justice Pazaratz commented on the trauma which can be caused to a child by police involvement in transfers between parents, and observed that the perceived need for such involvement often signals a deeper problem in a parenting arrangement that requires a different solution.

[25] I order that transfers of R.L. shall take place at the following locations:

• Except for school vacation periods, Father shall pick up the child at Lawrence Heights Community Centre at Lawrence and the Allen; return the child on Monday mornings to Glen Park Public School; and return the child after the scheduled Tuesday and Thursday visits to Mother at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence;

• During school vacations, Father shall pick the child up from and return the child to Mother at the Second Cup coffee shop at Lawrence Plaza at Bathurst and Lawrence.

[26] I recognize that this is not the order which Father wants. I chose these transfer points for the following reasons:

• I provided for pick-up at the community centre rather than the school, as it is clear that Mother needs a reliable after-school care arrangement, and it does not appear that this pick up spot is more difficult for Father than the school. Father is at liberty to talk with R.L.'s teachers on Monday mornings or at other times of his choosing.

• I provided for drop-off on Tuesday and Thursday evenings at the Second Cup at Bathurst and Lawrence because it is nearer to R.L.'s home with Mother than the location desired by Father. Neither parent has regular use of a car. Mother is responsible for R.L.'s transportation at all times other than the child's time with Father. I do not expect that using this transfer point will cut down R.L.'s time with Father on these days from the time envisioned by Justice Cohen when she extended the Tuesday and Thursday return times in her August 4, 2015 decision.[5]

[27] Both parties shall follow this order with respect to transfer locations, and neither shall purport to change these locations without prior agreement in writing.

I anticipate that this decision should prevent any future decisions by Father not to return R.L. at the scheduled time (or by Mother not to make the child available because of Father's threats not to return her, unless Mother picks the child up from another location). If Father in the future fails after mid-week visits to return R.L. to Mother as ordered, I will entertain a motion to eliminate the midweek access.

Costs

[28] It appears that success is divided fairly evenly on this motion, and I make no order as to costs with two exceptions:

• The motion to strike was triggered by Father's complete failure to comply with the disclosure order made June 2, 2015. The disclosure ordered was simple, and if he had complied, the motion would have been unnecessary. With respect to this issue, I order that Father pay costs of $750 on or before December 15, 2015.

• Although I make no order now with respect to the costs involved in the aspects of the motion dealing with access, if I find on a motion brought in the future pending trial that Father has failed to comply with my order with respect to the transfer of R.L., then Mother may renew her claim for costs on that issue in this motion.

Released: November 24, 2015

Signed: Justice E. B. Murray

Footnotes

[1] Return time for weekday access was recently extended by 30 minutes on motion heard by J. Cohen

[2] Pecaru v. Pecaru, 2010 ONCA 92

[3] Kovachis v. Kovachis, 2013 ONCA 663

[4] King v. Mongrain, 2009 ONCA 486; but see Haunert-Faga v. Faga, where an order striking pleadings in a case involving custody and access issues was upheld where a party persistently refused to comply with temporary orders for financial relief.

[5] It appears that at the time of that motion, mid-week returns of the child were taking place at Bathurst and Lawrence.