Court File and Parties

Court File No.: D71132/14 Date: March 29, 2016

Ontario Court of Justice

Re: Nisha Adams – Applicant And: Caleb Adams – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Sheila MacKinnon, for the Applicant
• Caleb Adams, self-represented

Heard On: March 21, 2016

Reasons for Decision

Introduction

[1] This is a motion by the Applicant ("mother") to strike the Respondent's ("father") pleadings, for payment of child support arrears that are as of March 1, 2016 $4,028.00, for payment of all outstanding costs orders against him in the amount of $30,427.52 and an order for security of costs of the trial in the amount of $35,000.00 and an order that the father share in transporting the children to school.

[2] The motion also requests an order that the mother be permitted to register the child, Zhyon in a public school. The mother did not proceed with this relief as new counsel for the children has just been appointed and will require time to review the file, obtain updated information and meet with the children along with the clinical investigator that was previously assigned to the case. The issue of a change of schools for Zhyon was therefore deferred.

[3] Counsel for the children took no position and did not participate in this motion.

[4] The father opposes the motion.

[5] Ms. MacKinnon on behalf of the mother filed a brief of authorities and relies on the mother's affidavit sworn March 7, 2016. The father relies on his affidavit sworn March 17, 2016. Ms. MacKinnon and the father made submissions. This is my decision.

Background

[6] It is necessary to briefly review both the background and litigation history in order to put this motion into proper context.

[7] The parties were married on July 24, 2005 and lived together continually until the separation on June 23, 2014.

[8] There are four children, Kayne who is 15 years old, Kayesha who is 10 years old, Selah who is 7 years old and Zhyon who is 4 years old. Except for Selah, all of the children attend Whitfield Christian School.

[9] Both parents were primary caregivers of the children while the parents resided together.

[10] The mother is a teacher but in 2011 she was diagnosed with an autoimmune neuromuscular disease and was unable to return to work. She is in receipt of long term disability and CPP disability payments. The father is employed as a parent support worker.

[11] The parties separated after an altercation on June 22, 2014 that resulted in the police being called and the father was arrested for assaulting the mother. The mother alleged the father was intoxicated and the police notes indicated he had a "strong odour of potent alcohol". The paternal grandmother was present during the altercation and when the police were at the home.

[12] The next day, different police officers attended at the home and arrested the mother for assaulting the paternal grandmother. The mother suspected that her arrest was suspicious as the father was waiting outside the home and was aware she was being arrested and the father's brother is a police officer. The father removed the children from the home while the mother was being arrested.

[13] The mother was held overnight for a bail hearing and returned to the home the next day. The father refused to return the children to her care or permit her any access.

[14] On June 27th, the day the parties were before this court on an emergency motion, the father's family served an eviction notice on the mother. The mother and father had been renting the home since 2005 from the paternal grandmother and her husband ("the paternal grandparents") and the mother believed that they had signed a rent to own agreement.[1]

[15] On October 27th the landlord and tenant tribunal dismissed the paternal grandparents' application to terminate the mother's tenancy.

[16] On October 29th, the paternal grandparents changed the locks and took possession of the premises without notice or attempting to negotiate a planned moving date. A note was left on the door that the mother had until October 31st to remove her belongings. There were disputes about when and what belongings could be removed.

[17] The mother was able to obtain new accommodations but these were in Markham whereas the previous residence was in Scarborough.

[18] On June 27, 2014, the mother brought an urgent motion. The mother was represented by duty counsel and the father had his own counsel present. The parties agreed, on a temporary without prejudice basis to the mother having only supervised access on alternate days for a maximum of three hours. The father had made allegations that the mother was physically and mentally ill and that the children's aid society was involved.

[19] On August 1, 2014 the parties were before Justice Curtis who heard the urgent motion in its merits and also conducted a case conference. Justice Curtis made a temporary order for an alternating week about schedule. The endorsement indicates that costs were reserved and no additional materials regarding access could be filed without leave of the court. She noted that this was a very high conflict case and that there was a concern about the consequences for the children. An order for the appointment of the Office of the Children's Lawyer was made. Justice Curtis subsequently released her cost decision and ordered the father to pay costs on a full recovery basis of $9,227.52 to the mother on the basis that, "the father's behaviour was egregious and cannot be tolerated or encouraged. It was confrontational, controlling and not in the interests of the children."

[20] On November 5, 2014 the parties and counsel for the children were before Justice Curtis for a case conference and the endorsement notes that a temporary motion was necessary.

[21] On December 31, 2014 due to some scheduling issues, the motions by both parties for custody, ancillary orders and child support were heard by me. Both parties were represented by counsel and filed voluminous materials. In my decision released on January 5th, 2015 I found that the father had attempted to manipulate the system, misrepresented events to create a status quo where he was the primary parent, used the mother's illness as a litigation strategy and had attempted to marginalize the mother's role. I further found that the mother was the best parent to ensure that the father had a meaningful role in the children's lives and that in view of the conflict between the parties there had been a total breakdown in the parties' ability to make joint decisions. The mother's parenting plan was structured around the father's work schedule and resulted in only slightly more time to the mother. A detailed order was made with respect to communication, decision making protocols and sharing of information about the children.

[22] With respect to child support an income of $43,000 was imputed to the father and the parties were to share the children's special expenses in accordance with their income. As the father wished the children to continue to attend private school, it was ordered that he would be solely responsible for that expenses which was about $15,000 per year per child. The father deposed that his parents were committed to paying the school expenses.

[23] The parties filed written cost submissions. In the decision of March 19, 2015, costs were fixed at $12,700 payable by the father to the mother at a rate of no less that $500 per month.

[24] On March 23, 2015 another case conference was held. Both parties were seeking to bring motions to vary the outstanding order despite the parties being advised that further litigation would undoubtedly increase the conflict between the parties, the issues could not be resolved. The father who became self-represented was urged to consult with counsel.

[25] On June 18, 2015 the motions were heard to vary the order of January 5, 2015. The mother sought an order to permit her to change the children's school, to permit her to travel on a three week Christmas holiday, to prevent the father from filing any further motions until he paid any outstanding child support arrears and cost orders and for disclosure regarding the father's employment and work schedule. The father filed a motion to allow the children to remain in their current school, for an order of joint custody, for one day of additional access, for a sharing of transportation of the youngest child who was not yet in school and for disclosure of the mother's car lease, for medical reports and information about her housing. Ms Pohani, who was counsel for the children at the time, supported the children remaining in their current school.

[26] I found that it remained in the children's best interests to remain in their current school and that the youngest child, Zhyon would commence school in September at the same school. I held that the mother would be permitted to change schools if there were any changes in the children's wishes to remain in the school, an inability of the school for meet Selah's needs for speech therapy or a change in the commitment of the paternal grandparents to fund the school. I permitted that mother to take the children on a vacation and found the father's allegation that she was a flight risk to be baseless.

[27] I dismissed the father's motion as he had not met the threshold of proving a material change in circumstances as he was simply attempting to re-litigate the relief he sought at the temporary motion for joint custody, equal parenting time and a parallel parenting order.

[28] The access proposal made by the mother and adopted by the court in the order of January 5th was based on the father's alleged work schedule and the representation that Kayne wanted to continue with his paper route in his father's neighbourhood. However, during the hearing of the motion on June 18th and based on the father's materials, it became clear that Kayne no longer had a paper route, that the father had moved out of the paternal grandparent's home which impacted on the arrangements for the care for the children if he was still working a night shift. The father continued to refuse to provide details of his work schedule.

[29] Based on these concerns and other breaches of the outstanding order, I ordered that the motion would be continued with respect to issues that I outlined. I ordered the father to file specified disclosure and a further affidavit dealing only with issues I outlined. I also ordered the mother, upon receiving the father's disclosure and affidavit to provide financial disclosure and a further affidavit limited to the issues I outlined.

[30] On July 16, 2015, the parties attended for the continuation of the motion and were able to consent to a schedule for summer access. Upon reading the further affidavits filed and hearing submissions, I ordered that the child Selah could be enrolled in a public school in the mother's neighbourhood. I varied the access schedule so that the children would now spend alternate week-ends with the father to coincide with his work schedule and on Wednesdays from after school to 8:00 p.m. as it became clear that the father was working overtime on Wednesdays despite his earlier representation that he would be with the children overnight. I found that the father had misled the court with respect to Selah's progress in school, failed to provide complete disclosure of his work schedule and deceived the court in an earlier affidavit wherein he deposed that Kayne wanted to continue his paper route. I found that the father had manipulated enrolling Kayne in an overnight summer camp for the entire summer near the paternal grandparent's trailer thereby interfering with the mother's ability to see him during the summer. I also found that the father was interfering with the mother's relationship with Kayne.

[31] Written submissions were filed with respect to the costs on the motion heard on June 18th and July 16th. I held that the mother was entitled to her costs although not on a full recovery basis as she was not successful with respect to an order for all of the children to attend public school in her neighbourhood. I held that the father went to great lengths to mislead the court, failed to abide by court orders and his conduct should be sanctioned. The father was ordered to pay costs of $10,000. I also ordered that the father was not permitted to initiate any further court proceedings except with prior leave of the court, until the cost order was paid.

[32] On September 18, 2015 the parties and Ms Pohani on behalf of the children attended a settlement conference. The parties were able to settle the financial issues on a final basis. Recommendations were made for settling the parenting issues and specifically I recommended to Ms Pohani that for trial purposes, since neither parent wished the children to testify, that a clinical investigator should be assigned to provide the court with evidence about the children's views and preferences but also that some investigation was needed to determine whether or not the children were being manipulated or unduly influenced by either parent.

[33] A further settlement conference was held on January 12, 2016. Further information from the Office of the Children's Lawyer was not yet available. Mother's counsel sought leave to bring a possible motion to strike the father's pleadings if the child support arrears and cost orders were not paid and if the father did not comply with outstanding disclosure orders. A return date was set for March 21, 2016 for either a continued settlement conference or a motion with timelines for filings. A target date of April 5th was set for the trial assignment court.

Evidence Relied Upon by the Mother with Respect to Striking Pleadings and Security for Costs

[34] The mother's position as outlined in her affidavit is simply that she has limited financial means and the father should not be allowed to continue to litigate while not paying the child support arrears or the costs he was ordered to pay her for the previous motions.

[35] It is submitted that the mother has already incurred significant legal fees and will incur even further significant legal fees if the father is permitted to proceed to trial without paying the outstanding amounts due to her and without providing security for future costs.

[36] The mother relies on the father's conduct throughout the litigation and his disregard for court orders which have been commented on in all of the previous court decisions and endorsements.

[37] The mother deposes that the father, in contravention of the court order, has continued to involve the children in the litigation, telling Selah that she needs to return to Whitfield school and that she belongs there which is confusing to her.

[38] The children told the mother that the father told them he quit his job so that he could have them in his care 50% of the time. When the mother confronted the father about these statements he replied by text message, "if I have to quit my job to have them half time- it's a no brainer. When asked how he would support the children and himself he replied, "I do not care about money. I care about them."

Evidence Relied Upon by the Father with Respect to Striking His Pleadings and Security for Costs

[39] The father does not deny that there are child support arrears or that he has not paid any monies on account of the outstanding cost orders. It is his position that his income is being garnisheed so that he is paying the child support order.

[40] The father submits that the only way he can earn more income with his current employer is to take a "leap of faith" and drop his guaranteed contract position of 40 hours a week to a 24 hour a week and go on a call/relief list. When questioned as to why this would be a "leap of faith", the father explained that there would be no guarantee about obtaining more hours or earning more money but nevertheless he was confident he could do so.

[41] The mother submits that based on the work schedule the father submitted that in the last few months he has taken 4 weeks of holidays and some unpaid sick days in support of her position that the father is not trying to increase his income to pay down the child support arrears or cost orders. The father's position is that he was "forced" to take the vacation days but provides no supporting evidence from his employer or explain why during his vacation he could not have sought some extra shifts.

[42] The father made no proposals with respect to paying the child support arrears or costs other than this comment about changing the terms of his employment. It is the father's position that he is paying what he can and he wants joint custody and the children in his care half time.

[43] Although the father agreed that the ongoing litigation is not child focused, it is his position that the children need to be heard. He submits that he does not want to give up on the children, that the mother is being selfish and he does not agree there is any impact on the children as a result of his non-payment. He also submits that given that the trial will be about the best interests of the children he needs to be able to participate so that the court has all of the necessary information.

Applicable Statutory and Legal Principles with Respect to Striking Pleadings and Security for Costs

[44] Family Law Rules 1(8) and 1(8.1) gives the court a broad discretion as to various remedies when a litigant fails to obey a court order or the Rules of the court, including the ability to strike pleadings. Family Law Rules 1(8.4) explains the consequences of striking out pleadings. The authority to make an order for security of costs is provided in Family Law Rules 24(13).

[45] Those provisions are as follows:

FAILURE TO OBEY ORDER

(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

(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).

[46] These Rules should be considered in the context of the overarching principles set out in Family Law Rules 2(2) and (3) that require a court to deal with cases justly. Those provisions state:

PRIMARY OBJECTIVE

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

DEALING WITH CASES JUSTLY

(3) 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.

[47] Family Law Rules 24(13) to (16) sets out the authority of a court to order security of costs in various circumstances and the effects of such an order. Those provisions provide as follows:

ORDER FOR SECURITY FOR COSTS

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.

2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.

5. A statute entitles the party to security for costs.

AMOUNT AND FORM OF SECURITY

(14) The judge shall determine the amount of the security, its form and the method of giving it.

EFFECT OF ORDER FOR SECURITY

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.

FAILURE TO GIVE SECURITY

(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party's case or striking out the party's answer or any other document filed by the party, then subrule (15) no longer applies.

SECURITY MAY BE CHANGED

(17) The amount of the security, its form and the method of giving it may be changed by order at any time.

[48] The Ontario Court of Appeal has repeatedly cautioned[2] that in family law cases, pleadings should only be struck and trial participation denied only in exceptional circumstances and where no other remedy would suffice. The exceptional nature of the remedy is based on the significance of the adversarial process as the court points out in Pecaru v. Pecaru at paragraph 49:

special care must be taken in family law cases where the interests of children are at issue. The consequences of striking pleadings or limiting trial evidence when custody or access is at issue was discussed in King v. Mongrain (2009), 2009 ONCA 486, 66 R.F.L. (6th) 267 (Ont. C.A.), where Gillese J.A. observed at p. 273 that pleadings should not be struck if such a remedy leaves the court with insufficient information to determine custody….

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.

[49] In the recent case of D.D. v. H.H. the Ontario Court of Appeal once again reiterated these principles and granted an appeal where the motion judge had struck a parent's pleadings. At paragraphs 78 to 81 the court stated as follows:

78 In King v. Mongrain, this court explains that a full evidentiary record, including the evidence of both parents, is generally required in order for the court to determine the best interests of a child. At paras. 30-31, this court recognizes the power of family courts to strike pleadings but makes clear that it is preferable that such a sanction be avoided when the matter to be decided is custody or access:

[C]ourts should use the utmost caution in striking pleadings where children's interests are involved and it is generally preferable to avoid using that sanction... The reason for that admonition is simple -- in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. [Emphasis added.]

79 As in King v. Mongrain, the motion judge in the present case decided the custody issue on an inadequate evidentiary basis: the evidence was solely that adduced by the respondent. And, much of that evidence was about the tortured procedural history of this case, the children's aid societies' failures, and the police's failure to enforce the warrant for H.D.'s arrest and return the children to Ontario. Furthermore, it will be recalled, at the hearing H.D.'s counsel was not allowed to even make submissions on whether D.D. should have custody, let alone cross-examine D.D. or lead evidence.

80 Just as in King v. Mongrain, the one-sided presentation of evidence did not provide an adequate basis on which the motion judge, acting in accordance with the relevant statutory provisions, could determine that a final custody order in the father's favour was in the children's best interests.

81 This is not to suggest that the family courts may never strike pleadings or that, if struck, custody and access cannot be decided. Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.), is an example of a case in which this court upheld a decision to strike pleadings in a family law case where custody was an issue. However, in that case, the Office of the Children's Lawyer was representing the children's interests in the proceedings. In the present case, no one represented the children.

[50] There is no doubt that the case law is clear about the caution a court should exercise in striking pleadings both in cases involving financial issues and probably more so where the court must make decisions regard the best interests of children as the input of both parents is required.

[51] However, where the court has available to it information about the best interests of the children and other remedies for non-compliance have been unsuccessful, the court has struck a party's pleadings. As noted above in proper circumstances, as in the case of Haunert-Faga v. Faga the Ontario Court of Appeal upheld the trial judge's order striking a father's Answer, despite the fact it related not just to financial issues but also to custody and access issues, as the Office of the Children's Lawyer had been appointed and therefore the children would be represented before the court.

[52] As the financial issues are resolved, a remedy used on some cases whereby a party's pleadings are struck on financial issues and the party to permitted to participate on other issues is not available in this case as there is a final child support order.

[53] Cost orders have already been made against the father in this case due in large part to his unreasonable behaviour, his failure to obey court orders and his misrepresentations and manipulation of the court system. One of the purposes of a cost order is to discourage and sanction inappropriate behaviour. But if a litigant who has been found to have behaved inappropriately is permitted to simply ignore a cost order and continue with the same behaviour then a cost order is not an effective sanction.

[54] An order to prohibit the father from bringing any further motions has already been ordered. But though the father was not permitted to bring a motion, on this motion the father continued to submit that he should have joint custody and a shared parenting plan in other words, even though he had no motion before the court he still filed the same evidence and made the same submissions and once again attempted to re-litigate the temporary custody motion.

[55] The father has not made any attempts to comply with the cost orders. The cost order of March 19, 2015 permitted the father to pay costs in installments of $500 per month. He ignored that order. The next order of November 2, 2015 required him to pay $10,000. He ignored that order. The order of Justice Curtis of February 17, 2016 requires him to pay costs of $9,227.52 on terms to be determined by myself as the case management judge. The father has not provided any evidence with respect to attempts to obtain a loan from either a bank or family members to pay the outstanding child support arrears or the cost orders. In both his affidavit and his text message produced by the mother, it appears more likely that the father will take steps to reduce his income rather than making any sincere efforts to increase his income or find other means to pay these debts.

[56] I have considered whether or not I should stay the proceedings until the father pays the amounts he owes rather than strike his pleadings. However, such a remedy I find is one that is more suited to cases involving financial issues for example, where a payor's motion to change may be stayed until proper disclosure is provided.

[57] These children have been caught in the middle of a very high conflict dispute between their parents since the parties separated in October 2014. The affidavits filed by both the mother and the father outline further disputes and they both raise allegations against the other's parenting abilities. It is not in the children's best interests for this litigation to continue indefinitely.

[58] Rule 2 requires a court to deal with cases justly. How would it be just to the mother to continue to permit the father to re-litigate issues, behave unreasonably, not pay costs and continue to cause her to incur legal fees?

[59] I find that this is one of the exceptional cases where the father's Answer should be struck and he should not be permitted to participate any further in this proceeding until he has paid all costs orders and paid the child support arrears.

[60] I find that as the Office of the Children's Lawyer is involved in this case and will be permitted to make submissions and file materials on behalf of the children that their interests will be before the court. The court will therefore be in a position to make orders that are in the children's best interests.

[61] If the father wishes to participate further in the proceedings then, upon providing proof that he has paid the child support arrears and the cost orders, he may file a Form 14B on notice to the mother to request that his pleadings be re-instated or if the case is completed by that time for permission to take any new steps in the case.

[62] However, I intend to proceed with the case and once counsel for the children is in a position to advise of her position and provide evidence to support that position, I will proceed as an uncontested hearing but taking into consideration the position and evidence of the children's counsel.

[63] I agree with the comments by Justice Pazaratz in the recent case of Izyak v. Bilousov discussing the case law and the appropriateness of ordering security for costs in custody and access cases. Justice Pazaratz makes the following observations:

36 The purpose of an order for security of costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred.

37 Security for costs is not intended as a roadblock for a person who has a genuine claim. In most instances the merits of a case should not be determined by a party's inability to post security for costs. Bragg v. Bruyere 2007 ONCJ 515 (OCJ).

38 But litigants should not be permitted to use the court as a playground. Court proceedings are expensive, time consuming, and disruptive. They should not be launched frivolously or without due regard to the impact on the responding party. McGraw v. Samra 2004 ONCJ 164, [2004] O.J. No. 3610 (OCJ) ….

40 The court must apply the following analysis:

a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.

b. If the onus is met, the court has discretion to grant or refuse an order for security.

c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v. Clark 2014 ONCA 175

d. The order must be "just" and be based on one or more of the factors listed in subrule 24(13). Hodgins v. Buddhu [2013] O.J. No. 1261 (OCJ).

41 A common theme in the case law suggests security for costs in custody and access cases should only be ordered in exceptional circumstances. Kaiser v. Wein 2014 ONSC 752; Daviau v. Husid 2014 ONSC 3188; Parham v. Jiang 2014 ONSC 3293. The traditional rationale:

a. the best interests of children are always paramount.

b. Courts should not allow the outcome in children's lives to be determined by a party's financial resources, or inability to post security for costs.

c. Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children's issues if both parties participate in the process and provide valuable information. Kovachis v. Kovachis 2013 ONCA 663; Purcaru v. Purcaru 2010 ONCA 92.

d. These concerns may be particularly applicable where custody or access are being determined in the first instance (as opposed to a motion to change, where the issues may be narrower, and where the moving party has the threshold onus to establish a material change in circumstances).

42 But high conflict parenting disputes are often the most time consuming, financially draining, and emotionally damaging cases we deal with in family court. Quite often the best gift we can give children is a break from the family siege mentality and perpetual stoking of conflict which accompanies endless litigation.

[64] I find that the criteria for an order for security of costs are met at this time. The father has three outstanding costs orders in this proceeding and also owes costs in another proceeding. The father's claim for joint custody based on the high conflict between these parties is a waste of time and has in my view a very low chance of success. The father does not have assets in this jurisdiction to pay any further cost order that may be made. I make no findings with respect to his claim for equal time sharing until the position of counsel for the children and the evidence relied upon for that position is before the court. It is unfair for the mother that the father can continue to litigate without any fear that there will be an actual financial consequence to him.

[65] The father made no further submissions on the issue of the mother's request for an order for security of costs and relied on the same submissions he made with respect to the request for an order to strike his pleadings.

[66] I therefore order that the father post security of $10,000 before he takes any further steps in this case in addition to the costs already ordered.

[67] I have considered that this is an originating hearing and the father is being precluding from further litigating until the outstanding costs order and child support arrears are paid. Therefore, I will permit the father to file a Form 14B, on notice to the mother, with respect to his proposal as to the form and method of giving such security and if all costs have been paid in full, the father will be permitted to make submissions to set aside the order for security of costs.

Transportation Issue

[68] With respect to any substantive issues raised, the issue of which parent should be responsible for transporting the three children who attend Whitfield Christian Academy must be dealt with.

[69] It is the mother's position that the parties meet halfway at the Don Valley Parkway and Lawrence at 8:15 a.m.

[70] The mother deposes that the children are required to be at Whitfield at 8:50 a.m. and she has received a letter from the school that the children's late arrival that is, by 9:00 a.m. or a few minutes after 9:00 a.m. is disruptive. The lateness is a result of the mother being required to drop Selah, who attends the local public school at 8:40 a.m. and no earlier as there are no before morning programs available.

[71] Although Kayne who is 15 years old is able to take public transportation, the mother is not prepared to require that he also be responsible for taking his 10 year old sister and 4 year old brother.

[72] Therefore, in November, the mother through her counsel requested the father assist in driving. Although initially reluctant the father did agree and began to meet the mother at the half-way meeting spot. But in January, the father told the mother she needed to email him every night and "ask nicely" and then he would let her know if he could drive the children the next day as he was doing her a favour.

[73] According to the mother, the father is presently driving an average of 2 to 3 days a week but according to the mother he is making things difficult as he sometimes says he cannot drive because he does not have enough money for gas, or he makes last minute changes cancelling the night before or in the early morning when he had previously agreed to drive.

[74] The father also submits that at the motion on June 18th, 2015 he was prepared to drive every day although my recollection is that he suggested that he might be able to share the driving. On that motion, he also produced proof that the mother's new residence was close to the highway and the driving time to the school was only about 20 minutes. These were factors I found supported the father's position that the children continue to attend Whitfield.

[75] The father's position on this issue is convoluted. He submits that he is in any event driving every day but then changed his submission to say that he was driving 2 to 3 times a week. On the one hand, he continues to agree to share the driving, understands the importance of the children being on time and states that he loves seeing them in the morning for even a short time.

[76] But then he states that the mother could drop the children off at Whitfield earlier as they have a before school program or drop them off at the paternal grandparent's home as they have always been ready to assist. He does not propose who would pay the extra cost of the before school program nor does he explain why the grandparents could then not assist in picking the children up and driving them to school if necessary. The father states that the children's attendance at Whitfield should not be dependent on him driving.

[77] He then further deposes for several pages, why the court order was wrong, that Selah should be returning to Whitfield and blames the mother for misleading the court about Selah's educational needs not being met at Whitfield.

[78] The mother has been abundantly clear that she does not wish the children to continue to attend Whitfield and has attempted to change the children's schooling in several motions including the present motion before the court. She has raised the practical issues of problems with transportation, her concerns about relying on the paternal grandparents to continue to pay for the tuition and her concerns that Selah and now Zhyon's educational needs are not being met by the school.

[79] I ordered that the children remain at Whitfield as after the separation their need for some stability was a pressing concern and based on the position of counsel that the children wished to remain at the school. I also expected, as offered by the father that he would assist with the transportation issues. At the time the specifics of the timing of the start of both schools and the difficulty outlined by the mother was not known. The father and his family very much wish the children to continue to attend Whitfield and therefore I would have thought that they would do whatever they can to assist the mother even if they were dubious that this is a further excuse by the mother to remove at least the younger children from the school.

[80] The father did not deny that he was requiring that the mother email him every day to inquire whether or not he could meet her half way and drive the children. He deposes that he was being reasonable and he was complying with the court order of June 22, 2015 that stated that each parent was responsible for arranging for transportation of the children to and from school on the days the children were in their respective care except for other arrangements agreed upon in writing and in advance. The father did not deny the tone of his emails. The father had no insight that his behaviour in demanding that the mother ask him "nicely" each day to help her get the children to school on time would be seen as controlling and demeaning to her.

[81] During submissions, I attempted to clarify why the father could not let the mother know if he was unable to take the children to school. The father simply was unable or unwilling to grasp the concept that it would be assumed he could pick up the children and only if he was unable to do so would he then email the mother.

[82] I find that since the order was made regarding the transportation, new evidence has become available that was not previously available and therefore new arrangements will have to be made, at least for the short term, to ensure the children arrive at Whitfield on time. There was no evidence that there were problems with respect to the mother picking the children up at the end of the school day. I find that there is no reason the father should not be able to meet the mother half way to pick the children up and take them to school. If the father is unable to do so, he should arrange for a third party that is known to the children to do so. I would think one of the paternal grandparents or another member of the paternal family would be acceptable.

Order as Follows

1. The Respondent, Caleb Adams' pleadings in this proceeding are struck in their entirety.

2. If the Respondent wishes to participate further in this proceedings then, upon providing proof that he has paid the child support arrears of $4,028.00 and the outstanding cost orders totalling $30,427.52, he may file a Form 14B, with a supporting affidavit not to exceed 3 pages, on notice to the mother to request that his pleadings be re-instated or if the case is completed by that time for permission to take any new steps in the case.

3. The Respondent shall pay into the court $10,000 as security for costs before he shall be permitted to take for any further steps in this proceeding.

4. If all outstanding costs and child support arrears are paid, the Respondent shall be permitted to file a Form 14B not to exceed 3 pages, on notice to the mother with respect to setting aside the order for security of costs or proposing a different amount or different form of security.

5. The Respondent shall meet the Applicant at the Don Valley Parkway and Lawrence Avenue at 8:15 a.m. each morning that the children are in the care of the Applicant to drive them to school. If the Respondent is not available, he shall arrange for a third party known to the children to pick them up at the same place and at the same time.

6. This case shall be removed from the trial assignment court and adjourned before me to April 1st, 2016 at noon in order for counsel for the children to attend and to determine at timetable for next steps in the proceeding.

[83] If counsel for the Applicant is seeking costs of this motion, brief written submissions shall be served and filed with the court along with a bill of costs within 14 days. The Respondent shall be permitted to respond to the request for costs and shall serve and file brief response not to exceed 3 pages within 14 days of receipt of the Applicant's submissions.

Justice Roselyn Zisman

Date: March 29, 2016

Footnotes

[1] There is ongoing civil litigation with respect to the ownership interests of that property. The father and paternal grandmother and step-grandfather were ordered to pay the mother costs of $7,500 on March 18, 2016 as they were unsuccessful with respect to a temporary motion to remove a Certificate of Pending Litigation.

[2] Pecaru v. Pecaru [2010] ONCA 92; King v. Mongrain (2009) 2009 ONCA 486, 66 R.F.L. (6th) 267 (Ont. C.A.); Marcoccia v. Marcoccia (2009) 2008 ONCA 866, 60 R.F.L. (6th) 1 (Ont. C.A.)

[3] Supra

[4] [2015] O.J. No. 2959

[5] [2005] O.J. No. 4569

[6] 2015 ONSC 3684 (SCJ) at paras. 36 to 38 and para. 42 (case citations omitted). See also the comments by Justice Quinn in Stefureak v. Chambers 2005 CarswellOnt 1076 (SCJ)