Court File and Parties
Ontario Court of Justice
Date: September 26, 2017
Court File No.: Toronto DFO 94 1070
Between:
Gail Alleyne Applicant
— And —
Grovan Linford Lawrence Respondent
Before: Justice E.B. Murray
Heard on: September 20, 2017
Reasons for Decision released on: September 26, 2017
Counsel
Ms. Olivia Oprea — counsel for the applicant
Ms. Tricia Simon — counsel for the respondent
Decision
MURRAY, E.B. J.:
Background
[1] The Applicant Gail Alleyne and the Respondent Grovan Lawrence are the parents of two children, "Cameron"[1], born November 29, 2003 and "Treyvon", born May 31, 1993. Gail and Grovan separated in 2007; Cameron has lived primarily with Gail since the separation. Treyvon, now 24 years old, is independent and not the subject of this application.
[2] Gail brought an application in January 2017 requesting orders for custody and child support for Cameron, retroactive to 2012. She says she has been requesting regular support from Grovan since 2012, and although Grovan has paid support from time to time, it has not been regular or in the proper amount as measured against what is required by the Guidelines.
[3] Grovan in his Answer asks that the claim for retroactive support be dismissed, and claims joint custody of Cameron and access every weekend.
Respondent's Employment History and Financial Situation
[4] Grovan is a licensed electrician with 16 years' experience. He worked in Alberta from 2008-2015, earning as much as $134,000 in a year. When in Alberta he typically worked only about 6 months per year, returning to Toronto when not on the job. Grovan says that in late 2015 he was laid off because of slow-downs in the oil industry. Shortly after that, he was suspended from his union for failure to pay union dues. He decided to return to Ontario and start his own business.
[5] Grovan filed a financial statement in this case stating that his income is only $20,000 annually. At a conference on May 8, 2017, a without prejudice temporary consent order was made providing that he pay support of $160 monthly based on his stated income. At that conference Grovan advised that he had filed his 2016 tax return with CRA and would soon file it with the court, and that he might return to work in Alberta. He has done neither.
[6] Gail questions whether Grovan left the Alberta job voluntarily, the extent of his job search (if any), and his decision to start a business rather than obtain employment as an electrician. She also questions whether he accurately reports his income from the business.
Disclosure Issues
[7] Two orders requiring Grovan to provide financial disclosure have been made, one on May 8, 2017 and the other on June 21, 2017. Deadlines for disclosure were set, and Gail's lawyer agreed to extend those deadlines on several occasions. She sent reminder letters, indicating her intention to proceed with a motion to strike if Grovan did not comply.
[8] Gail's lawyer finally served the motion to strike on September 7, 2017. Grovan furnished little further disclosure until 2 days before the motion date of September 20, 2017, when he produced a 2-inch stack of documents, including bank and credit card records. Grovan's responding affidavit stated that he needed to be a member of a union in order to obtain the well-paid work he had in Alberta, and that after he had lost his job, he was suspended from the union on December 1, 2015, because of non-payment of dues. This was corroborated by a letter from the union. Grovan's affidavit provided no information as to the amount of union dues outstanding, why he had not paid the arrears, the reasons for his termination of employment in Alberta, the date of the termination, and whether Grovan had made any attempt to find other work in Alberta or Ontario.
[9] Grovan's affidavit also contained his statement of gross business income and expenses for 2016 and 2017 to date.
[10] Gail's lawyer submits that some critical disclosure remains missing:
- The Record of Employment or letter from Grovan's prior employer indicating the reason for his termination of employment in Alberta;
- Evidence as to Grovan's job search (if any) and results of the search following that termination of employment;
- Grovan's 2016 tax return and Notice of Assessment
Positions of the Parties
[11] Gail's lawyer brings a motion to strike, and asks that if I grant the motion I order support for Cameron based on an imputed annual income of $96,935 in an amount of $855 monthly commencing January 1, 2017. This income represents Grovan's average income from 2013-2015. Counsel asks further for an order for retroactive support from January 1, 2012, which she says would total $45,810. She submits that even if the court does not strike Grovan's pleadings, that an order for temporary support in an amount of $855 monthly should be made.
[12] Grovan's lawyer asserts that he has complied substantially with the disclosure orders, and that his pleadings should not be struck. She says that further disclosure will be forthcoming. She does not oppose an order for temporary support payments. She acknowledges that the court may be reluctant to accept, given Grovan's experience and qualifications, that $20,000 annually represents what he can earn if he works to his full capacity. She suggests that the court consider an order based on an income of $30/hour, an amount within the range that the Federal government reports is earned by electricians; this translates into an annual income of $68,000, with a monthly support payment of $621.
Legal Framework
Motion to Strike
[13] Rule 1(8) of the Family Law Rules provides that if a party fails to comply with a court order, the court may make a number of orders, including an order for costs, or dismissing his claim, or striking his pleadings.
[14] Rule 1(8.4) provides that unless the court orders otherwise, if a party's pleadings are struck, he is not entitled to notice to further steps or to participate in the case. The court may deal with the case on an uncontested basis.
[15] Caselaw provides guidance as to how the court should use its discretion on a motion to strike.
The result of an order striking pleadings is so serious that the order should be made only in exceptional circumstances, where no other remedy would suffice. Alternate means of insuring that the non-compliant party obeys the order should be explored before an order striking pleadings is made.[2]
The court must apply the principle of proportionality when asked to make an order striking pleadings for non-compliance with a disclosure order. The order will likely not be appropriate if the non-compliant party has made substantial disclosure of what is material and important in the case.[3]
However, failure to substantially disclose necessary financial information is a serious breach that can justify an order striking pleadings. This disclosure is a basic obligation in a case in which support is in issue; the obligation is immediate and ongoing. Failure to comply disadvantages the other party and adversely affects the administration of justice.[4]
When orders breached are for financial disclosure, it is often better to strike pleadings on financial issues but allow the parenting issues continue to be litigated with participation by both parties.[5]
Imputed Income
[16] Also relevant to this case is the law regarding the court's power under section 19(1)(a) of the Child Support Guidelines to impute income to a parent who is intentionally under-employed. It was 15 years ago in Drygala v. Pauli[6] that the Ontario Court of Appeal held that a parent has an obligation to use his or her best efforts to support his or her children. Underemployment may be justified by "the needs of a child or the reasonable educational or health needs of the parent of spouse"; if not so justified, income in an appropriate amount may be imputed to that parent.
Application to This Case
Missing Disclosure
[17] I agree with Gail's lawyer that despite voluminous disclosure furnished by Grovan, critical pieces are missing. The following questions remain to be answered after production of this missing disclosure.
- Did Grovan voluntarily leave well-paid work in Alberta, or was he laid off or discharged?
- What is the amount of Grovan's arrears of union dues? Why, given Grovan's substantial income in Alberta, was he in arrears? What efforts, if any, has he made to pay the arrears? Why does he not pay them now?
- What efforts, if any, has Grovan made to find work since the termination of his employment in Alberta?
- Where is Grovan's 2016 tax return and Notice of Assessment?
[18] Grovan's disclosure has been tardy and inadequate. He was served with this application on January 3, 2017. It was 5 months later that he filed a financial statement claiming income of only $20,000 and lacking the basic disclosure required under the Guidelines and the Rules. Two disclosure orders and almost 5 further months later, important information has still not been provided.
Decision on Motion to Strike
[19] Having said all that, I have determined that I will not grant the motion to strike at this time for the following reasons.
The issue of custody and appropriate residential arrangements for Cameron are part of this case. Both Grovan and Gail appear to be parents actively involved in their son's life. A proper determination of these issues requires the participation of both parents.
Gail's claim includes a claim for retroactive support going back 5 years. Questions of credibility regarding reasons for the delay in the claim, what was requested by Gail, and what payments were made are involved. The issues require a viva voce hearing, probably a Rule 1 hearing. What does not appear to be at issue is Grovan's Guideline income for most of the years in question[7]. Grovan should have the opportunity to defend this claim.
In my view, measures short of an order striking pleadings are sufficient to encourage Grovan's compliance with the disclosure orders. That encouragement can be furnished by the court's determination of Grovan's temporary support obligation based on the evidence now before the court – with an adverse inference drawn because of significant missing disclosure – and by an order for costs. It will be open to Grovan to provide proper disclosure to assist the court in determining his future child support obligations.
Adverse Inferences
[20] I draw the following inferences from Grovan's failure to provide significant disclosure relevant to his ability to earn income:
Grovan has failed to produce his Record of Employment or letter from his prior employer indicating the reason for his termination of employment. This failure supports the inference that his termination may have been voluntary. A voluntary decision to reduce income justifies imputation of income at the level earned before the decision to reduce.
If Grovan actually wanted to return to work in Alberta, he had and has the ability to pay arrears of union dues. Grovan gave no evidence as to the amount of those dues. Gail provided evidence from the union website that the basic dues are under $50 monthly. Grovan's financial statement shows this payment would be well within his means, if he wanted to be reinstated.
Absence of evidence of any effort to find a job since his termination supports an inference adverse to Grovan, that he does not wish to find employment but wants to be self-employed, despite the steep decline in income that he says has resulted.
Imputed Income Determination
[21] Grovan is under-employed. He makes no claim that there are circumstances that justify his under-employment pursuant to s. 19(1)(c) of the Guidelines.
[22] What is the appropriate amount to impute to Grovan? I accept Gail's submission that Grovan's ability to earn income is adequately reflected by averaging his income from his last 3 years in Alberta; that amount is $96,935. If anything, that figure is probably an underestimate, since his evidence is that he was laid off sometime in 2015.
Support Order
[23] Based on that imputed income, I order that Grovan pay temporary support for Cameron to Gail in an amount of $855 monthly commencing January 1, 2017. A support deduction order shall issue.
[24] Grovan alleged in his affidavit that he has paid Gail $700 in child support in 2017. Gail had no opportunity to reply to this claim. If the parties are unable to agree whether this amount has been paid, this issue may be addressed at the next appearance.
Costs
[25] Submissions as to costs no longer than 10 pages may be made by Gail within 20 days; Grovan's response shall be served and filed within a further 20 days.
Released: September 26, 2017
Signed: Justice E. B. Murray
Footnotes
[1] Children's names are changed to pseudonyms.
[2] Purcaru v. Purcaru, 2010 ONCA 92
[3] Kovachis v. Kovachis, 2013 ONCA 663
[4] Roberts v. Roberts, 2015 ONCA 450
[5] Sleiman v. Sleiman, 28 R.F.L. 5th 447; King v. Mongrain, 2009 ONCA 486
[7] 2016 income information is missing