Court File and Parties

Ontario Court of Justice

Date: 2018-05-07

Court File No.: Toronto FO-16-14679

Between:

T.B.A. Applicant

— And —

A.P.W. Respondent

Before: Justice Sheilagh O'Connell

Heard on: January 10, 2018

Reasons for Judgment released on: May 7, 2018

Counsel

Patricia A. Smythe ......................................................... counsel for the applicant

A.P.W. ................................................................ on his own behalf, declining duty counsel

O'CONNELL, J.:

Introduction

[1] The Applicant, Ms. B.A. ("the mother") has brought a motion to strike the Respondent's pleadings in this case. She seeks permission to proceed on an unopposed basis and to obtain final orders for custody, no access, and a restraining order, among other relief, against the father.

[2] The Respondent, Mr. W., ("the father") opposes the mother's motion and seeks an order reinstating his access, that his access be unsupervised, and that the parties have joint custody of the children, among other relief.

Brief Background

[3] The mother is 33 years old. She was previously employed part-time as a wine merchant until the birth of her second child. She is currently receiving social assistance.

[4] The father is 38 years old. He is employed as a theatrical stage worker for I. A. of T.S.E. (I.A.T.S.E.) and during the parties' relationship earned approximately $60,000.00 to $86,000.00 annually. According to his Financial Statement sworn February 14, 2017, the father was employed at the National Ballet of Canada in 2016 presumably doing theatrical stage work. His current employment status is unknown.

[5] The parties are not married. They have two children together, namely, J.K.B.W., born […], 2012 ("J.") and, A.K.B.W., born […], 2015 ("A."). J. is now 5 years old and A. is 2 years old.

[6] The mother states that the parties were in an "on and off" relationship from on or about June of 2012 to October of 2016. They lived together intermittently during that time.

[7] The father states that the parties were in relationship from April of 2011 until October of 2016 and that they lived together throughout that time.

[8] The father has a criminal record. According to his Form 35.1 Affidavit filed, in June of 2007, the father was convicted of assault and breach of bail or undertaking; in August of 2010, the father was convicted of mischief under $5,000.00; in November of 2011, he was convicted of assault, breach of bail or undertaking, and mischief under $5,000.

[9] In the 2007 and 2010 convictions, the father received a suspended sentence and probation of one to two years. In the 2011 convictions, the father received a conditional sentence of 9 months and 2 years' probation. The father is currently facing another charge of mischief relating to the apartment where he was residing post-separation.

[10] The father was also criminally charged with assaulting the mother in 2012, when she was four months pregnant with J. The parties briefly separated after the father was removed from the home. However, the charge was withdrawn and the father entered into a peace bond after the parties reconciled.

[11] There may be other convictions which the father did not report in his 35.1 Affidavit. Unfortunately, the clinical investigator for the Office of the Children's Lawyer did not request and obtain copies of any police records for either party during the course of her investigation.

[12] The mother has no other children. The father has one other child from a previous relationship who is now 8 years old ("J.", born […], 2010). The father has had no contact with that child for several years. On February 26, 2013, according to the endorsement filed, His Honour Justice Harvey Brownstone terminated the father's access to this child, following two motions that were argued before him on that day.

[13] Justice Brownstone's complete endorsement reads that, for oral reasons given on February 23, 2013, as follows:

"The father shall not be permitted to bring any motion or commence any proceeding to reinstate his access until he has served and filed a thorough psychological assessment along with a report from a qualified therapist setting out the progress he has made in addressing his anger management issues."

The Litigation History

[14] On November 1, 2016, the mother commenced this application on an urgent basis seeking temporary orders granting her custody, suspending the father's access to the children, restraining the father's contact with her and the children, and permitting her to travel with the children.

[15] The affidavit evidence in support of the motion detailed a history of violent and abusive behaviour by the father towards the mother and witnessed by the children, evidence that the father was expressing suicidal behaviour and expression, (both verbally and in writing), and evidence that the father's behaviour was volatile and unstable. Examples of the text messages sent to the mother and details of the abusive behaviour were set out in the mother's affidavit.

[16] The orders were granted on a temporary without prejudice basis. The matter returned before the court on November 25, 2016. The father attended on that day. The father had not filed any responding materials but the parties worked out a temporary without prejudice order for supervised access between the father and the children. The court also made an order referring the issues of custody and access to the Office of the Children's Lawyer (the "OCL").

[17] On January 4, 2017, the matter returned to court to monitor the OCL's involvement. The OCL declined to become involved because the father had not completed his intake package. The court made a further order referring the case to the OCL and urged the father to complete his intake form. The status quo continued.

[18] On February 27, 2017, the matter returned to court. The OCL agreed to accept the referral and to conduct an investigation of the issues of custody and access. By this time, the father had also served and filed his Answer, 35.1 Affidavit, Financial Statement and Affidavits in response to the mother's urgent motion. In his response, the father admitted to sending a number of text messages to the mother at the time of the separation and being hospitalized, however, he deposed that he spent the night in the hospital for alcohol poisoning and that he had no recollection of some of the disturbing texts that he had sent because he was drunk. He denied all abusive behaviour.

[19] The father's friends, K.J. and V.B., filed affidavits in support of the father and were agreeable to supervising or monitoring the father's access on a temporary basis. The mother knew both of these individuals and was comfortable with their monitoring of the father's access, and therefore consented to an expansion of the father's access. The restraining order continued against the father.

[20] On consent, the father's access was increased to include two weekly unsupervised visits from Wednesday after daycare to 7:00 PM and on Saturdays from 12 noon to 4:00 PM. In addition, the father was granted alternating overnight visits from Saturday at 4:00 PM to Sunday at 12 noon, to be supervised or monitored by K.J. and/or V.B., friends and housemates of the father at that time, subject to other access conditions.

[21] On April 21, 2017, the mother brought an urgent motion seeking to suspend the father's access. The mother filed affidavit materials indicating that there had been a breakdown in the relationship between the father and the supervisors, who no longer wished to act as supervisors. In addition, the court learned that the father was being evicted from the house in which he was residing and where Mr. J. and Ms. B. also lived. There was an apparent altercation between the father and Mr. J. which the children had witnessed. The court subsequently learned that the father had been criminally charged with public mischief relating to this incident or his apartment.

[22] The mother's affidavit materials detailed of a number of disturbing events since the last court appearance. The mother deposed that the father had called her on the morning of Easter Sunday demanding that she immediately pick up the children because he was ill and had to go to the hospital immediately. The mother contacted one of the supervisors to determine what was happening, and was advised that that the father was not ill. However, according to the evidence filed, the father's behaviour was abusive and volatile towards the mother including escalating phone calls in which he was uncontrollably angry and screaming, calling her a "fucking cunt" and other abusive language while the children were with him and no doubt in earshot.

[23] After the altercation between the father and one of the supervisors, the father began sending a series of text messages to the mother indicating that he wanted to "sign the kids over", "you win take them from me" and other erratic and angry messages on a daily basis, all of which were attached as exhibits to her affidavit, as well as further very abusive and angry telephone calls. Given the breakdown in the relationship between the father and his supervisors, and his increasing emotional instability, the mother sought a suspension of the father's access until other arrangements could be made.

[24] The father was served with the mother's materials and attended court for this motion, although arrived late. He did not file any materials in response to this motion and he declined duty counsel assistance. The court was able to directly observe the father's behaviour in court that day and was very concerned. The father stood at the back of the court, coming in and out of the courtroom. He repeatedly requested on a number of occasions that the court "send him to jail" and that he wanted to "go to jail", at one point asking the court "how can I go to jail". He also requested on a number of occasions "to sign his children over to her" and that his children "could look him up when they were 16 years old." He became agitated when the court would not do this. The court strongly advised the father to get a lawyer and to seek assistance. It was necessary to call court security. The father became very upset and left the building.

[25] Based on the evidence filed, and the father's erratic, agitated and strange conduct in court that day, the court granted the order suspending the father's access on a without prejudice basis. A temporary without prejudice order for monthly child support of $892.00 based on the father's annual income of $60,000.00 was also made on that day. This order was made in accordance with the Child Support Guidelines and based on the father's sworn financial statement[1]. The matter was adjourned to July 21, 2017 to monitor the outcome of the OCL investigation and the father's response.

[26] On May 29, 2017, the OCL delivered its final report, in accordance with section 112 of the Courts of Justice Act. The clinical investigator recommended that the children continue to reside primarily with their mother. She further recommended that the father's access continue to be suspended and that his access be reinstated "once [the father] has established that he is capable of maintaining a stable mood with the children and is able to manage communication with [the mother] in a civil manner. This should be achieved by attending at least 6 sessions of counselling through E.A.P. or another registered therapist and thereafter by providing an updated psychiatric/psychological assessment." [Page 7 of the Report].

[27] Although the OCL investigator observed a positive relationship between the father and the children and that the children wish to have access with their father, she observed the following at page 6 of her Report:

…"[the father] appears to become reactive when distressed/challenged and uncontrollable angry outbursts were evident in in his interaction with [the mother] and in the presence of the judge in court. [The father] needs to ensure that he has the stability to maintain an even and calm presence with the children who are young and demanding. The father could benefit from gaining better insight into his triggers and having the necessary strategies to manage his mood and the children's demands."

[28] Although the children's statements to the clinical investigator, as expressed in the OCL report, are hearsay and would be subject to a voir dire before admissibility at a trial, the court was concerned that during a private meeting between J. and the clinical investigator at the child's school, when asked about her parents' separation, J. apparently reported to the OCL investigator that her father was being "very mean" to her mother and that he was "punching, yelling and hitting mommy." J. stated that she "saw that and heard them" and that she "felt very sad for her mommy" as her "mommy was crying when she went upstairs and told her father to stop."

[29] The clinical investigator made no findings of inappropriate parental influence or alignment, or alienating behaviour on the part of the mother. She did find that the mother became "flustered and overwhelmed when the father requested more time with the children."

[30] Based on the clinical investigator's findings regarding the father's anger management and her recommendation that the father's access continue to be suspended pending counselling and an assessment, the court was concerned that the investigator also made the following recommendation regarding decision-making at page 7 of her Report: "Parents attempt to reach a joint agreement. Should they be unable to reach a final decision, [the mother] to make a final decision regarding schooling/daycare, doctor and afterschool activities."

[31] It is difficult to understand how the parties would be able to communicate at all in light of the very serious concerns regarding the domestic violence witnessed by J., the father's uncontrollable anger, not to mention the fact that there is an existing restraining order against the father. The court was also very concerned that the clinical investigator did not obtain or review the father's police records, given the information that we have regarding the father's history of criminal convictions.

[32] On July 20, 2017, the matter returned to court. The father was present. The father stated that he had not received a copy of the OCL Report because he had now been evicted from his premises and that he was not permitted to return to that address because he had been charged with public mischief. A copy of the Report was provided to him in court. It appeared, however, that the father was aware of the OCL recommendations. The mother filed further evidence demonstrating that the father was not prepared to participate in counselling in accordance with the OCL recommendations.

[33] Again, the father was angry, agitated and erratic. He walked in and out of the courtroom. He became irrational. He asked again to be sent to jail. It was very difficult to reason with him. He became angry and hostile towards the mother and her counsel. It was very difficult to ascertain whether the father would agree with the OCL's recommendations. The father appeared to have absolutely no insight into how hostile, unstable, and aggressive his words and behaviour demonstrated.

[34] The court wrote a lengthy endorsement on that day and stated, among other issues, the following:

"This matter needs to move forward... The mother is seeking final orders and wishes to schedule either a summary judgment motion or unopposed hearing. [The father] attended today although he previously advised that he would not be participating. [The father] needs to obtain a psychiatric assessment through a referral by a family doctor and he should attend at least 6 sessions of counseling to address whatever treatment is necessary including the issues of mood stability and emotional regulation, in accordance with the OCL recommendations and this Court's recommendations. We should then proceed to a Trial Management Conference."

[35] The matter was adjourned to August 24, 2017 at 2 PM for a Trial Management Conference. On that day, the court learned that the mother's new partner had been charged with assaulting her and that the mother and the children had now moved to a different home. The children's aid society became involved and conducted an investigation. The agency apparently closed its file as there were no child protection concerns. The mother's boyfriend had been released on an undertaking not to have direct or indirect contact with the mother.

[36] The father advised that he had contacted the children's aid society and that he wanted me to make an immediate order placing the children in foster care. The court advised that it did not have the authority to make that order unless the children's aid society were involved and had commenced a child protection application. The matter was held down as the father wanted to contact the children's aid society. The father was also served with new materials from the mother in court on that day. According to the mother's counsel, she had made five attempts to serve the father and he had refused service and had refused to provide an address for service.

[37] The matter returned and it became clear that the children's aid society did not have any child protection concerns regarding the mother's situation. The agency had closed its file, which they had previously confirmed in writing the day before. The father requested that the agency re-open its file.

[38] Although the court was understandably concerned about this recent development in the mother's circumstances and the impact on the children, the court was also very concerned by the escalation of the father's abusive and irrational behaviour in court on that day. In addition to calling the mother and her lawyer "cunts" in Court, and calling the lawyer a "fucking cunt" and telling the court to "go fuck yourself", the father stated, "I want you to take the children away because the mother is a whore and a cunt." The father admitted to repeatedly calling the mother's lawyer and the mother "fucking cunt" outside of court but stated that he was exercising his right to free speech. The father continued to swear and act belligerently, calling the mother "a stupid fucking person". He would vacillate between telling the court that he would let the mother "have the kids for life", and then telling the court "to set the fucking trial date". He was very irrational. He walked in and out of court. He was not able to control his behavior.

[39] It was again necessary to call security. The court wrote the following in its endorsement and made the following orders on that date:

"The Respondent attended today and it was necessary to call security. He became extremely volatile and verbally abusive. The mother, her counsel, and the Court were all subject to this. …At the afternoon session, it became readily apparent that the Respondent's behaviour has continued, very regrettably, to escalate in a very concerning manner. The sworn evidence also demonstrates that the Respondent has posted a number of disparaging statements about the mother on social media[2]. Accordingly, based on the evidence filed, what transpired in Court today (an escalation of several other court appearances), this Court makes the following temporary Order:

The Applicant mother shall continue to have temporary custody of the children;

The Respondent father's access to the children shall continue to be suspended pursuant to my Order dated April 21, 2017 until further Court Order;

The Respondent father shall obtain an updated psychiatric assessment through a referral from his family doctor and attend at least 6 sessions of counselling to address whatever treatment is necessary including the issues of mood stability and emotional regulation in accordance with the recommendations of the Office of the Children's lawyer and this Court prior to a review of the temporary suspension of the Respondent's access;

The Temporary Restraining Order dated November 24, 2016 shall continue;

The Respondent is prohibited from making negative and derogatory remarks about the Applicant mother to third parties on social media, including Facebook or other social media sites;

All other temporary orders shall continue";

[40] The father was also ordered to pay $500.00 to the mother's lawyer for the wasted morning attendance[3].

[41] The matter was then adjourned to January 10, 2018 to review the father's compliance and to monitor the temporary orders. The court gave the father until December 15, 2017 to comply with the above orders. The mother was granted leave to bring a motion to strike the father's pleadings, if necessary, on January 10, 2018.

[42] The father would not agree to the adjournment date of January 10, 2018. He repeatedly told the court that he wanted the matter adjourned to January, 2019 and that he needed an "extra year" to comply with the orders made. He did not seem to understand or care how detrimental such a lengthy adjournment would be for himself and the children.

The Mother's Motion to Strike the Father's Pleadings

[43] The father was given a deadline of December 15, 2017 to comply with the above Orders. The matter returned to Court on January 10, 2018. On that day, the mother brought a motion to strike the father's pleadings for non-compliance with court orders.

[44] The mother's affidavit, sworn January 3, 2018, in support of her motion to strike the father's pleadings deposed the following:

1. The father had not complied with the Order dated August 24, 2017 to obtain an updated psychiatric assessment and attend counselling, despite being repeatedly encouraged to do so, and recommended by the OCL prior to the August 24, 2017 Order. The father had over seven months to comply with the OCL recommendations and five months to comply with the court order and has failed to do so;

2. Although the father had filed a sworn Financial Statement on February 14, 2017, he has failed to file any tax returns or notices of assessment, despite being previously told to do so and finally ordered to do so on August 24, 2017;

3. The father was ordered to pay child support on April 21, 2017, commencing May 1, 2017. Prior to the court ordered child support, the father made no voluntary child support payments with the exception of a total amount of $24.00[4]. The father has failed to abide by the court order for child support, despite filing a sworn Financial Statement dated February 14, 2017 deposing that he earned $86,000.00 in 2016. In total, the father has only paid $500.00 in child support since the parties separated, which was approximately seventeen months ago;

4. The father was ordered to pay costs in the amount of $500.00 on August 24, 2017, payable no later than December 15, 2017. The father has not complied with this order.

[45] The father attended court on the return date of January 10, 2018. At that time, the father did produce a psychiatric assessment dated October 10, 2017 that had been very recently served but never filed with the court. He also produced a copy of an email from 'Families in Transition' dated January 5, 2018. The Court granted the father permission to file both documents in court on that day.

[46] The email from Families in Transition confirms the father's registration for an upcoming "First Steps" session to be held on January 24th, 2018, fourteen days after the court hearing. No further information was provided concerning the nature and the duration of a "First Steps Session" or what was involved.

[47] The psychiatric assessment was conducted by Dr. Joel Jeffries on October 10, 2017, following a referral from the father's family doctor. Dr. Jeffries is a psychiatrist with the Centre for Addiction and Mental Health (CAMH) and according to the report filed, Dr. Jeffries had assessed the father previously in June of 2014.

[48] According to the report filed, the assessment took place in one day (October 10th, 2017), although the length of the session is not set out in the 3.2 page report. No psychometric testing was completed. The Report concludes the following on page 3:

"The only diagnosis I would consider for this man are marijuana dependence and nicotine dependence. He does have a short fuse but not to a sufficient degree that one could give a psychiatric label. He has no evidence of risk of harm to others. As in the past, this is a case of Partner Disharmony and perhaps parental alienation. As before I think there is nothing to suggest that he has any kind of mental disorder or anger dyscontrol that will prevent him from being an adequate parent."

[49] It is apparent from reading the report that it is based entirely on the father's self-report to Dr. Jeffries and contains many inaccuracies and material omissions, through no fault of Dr. Jeffries. In fairness to Dr. Jeffries, he acknowledges this very significant limitation at the last page of the report and suggests that the parties agree on an independent psychiatrist who has an opportunity to hear from both sides if his report is rejected.

The Law and Governing Principles

The Mother's Request to Strike the Father's Pleadings

[50] The court's authority to strike the father's pleadings is as follows:

1. Sub-rule 1(8) of the Family Law Rules ("the Rules") - The court may deal with the failure to follow an order in a case by "making any order that it considers necessary for a just determination of the matter", including an order dismissing the claim, striking out any application, answer, motion to change, among other pleadings, or any other document filed by a party, among any orders described under this Rule.

2. Section 24 of the Child Support Guidelines - 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, in the course of which it may draw an adverse inference and impute income to the parent that the court considers appropriate.

[51] Subrule 1(8.4) of the Rules provides that if an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, then the party is not entitled to any further notice of steps in a case, except for service of a court order and the party is not entitled to participate in the case in any way. The court may deal with the case in the party's absence and a date may be set for an uncontested trial.

[52] In Van v. Palombi, 2017 ONSC 2492, the Divisional Court held that the case law establishes that the legal principle governing the exercise of judicial discretion to strike a party's pleadings is a three-pronged test as follows:

(1) Is there a triggering event justifying the striking of pleadings?

(2) Is it appropriate to strike the pleadings in the circumstances of the case?

(3) Are there other remedies in lieu of striking pleadings that might suffice?[5]

[53] However, the case law is clear that striking a party's pleadings is a remedy of last resort. 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; Manchanda v. Thethi, 2016 ONCA 909.

[54] Even in the event of a court finding a "triggering event", justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all of the circumstances of the case. Given the exceptional nature of the remedy, the court should examine other remedies that might be appropriate in lieu of striking pleadings, which is the third step of the three-pronged test. See Van v. Palombi, supra, at paragraph 36.

[55] In Chiaramonte v. Chiaramonte, the Ontario Court of Appeal held that in family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice, following its earlier decision in Purcaru v. Purcaru. 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."

[56] Where custody and access interests are involved, the court should avoid the sanction of striking pleadings or use utmost caution because trial courts need the participation of both parties and information that each can provide about best interests. A full evidentiary record, which involves 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 ONCA, and Haunert-Faga v. Faga, 2005 ONCA 39324, 20 R.F.L. (6th) 293 (Ont. C.A.).

[57] 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.

[58] 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 ONCA 6909, 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.

[59] 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 ONCA 44930, 28 R.F.L. (5th) 447 (Ont. C.A.).

[60] Finally, 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 ONCA 33303, [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 ONCA 2288; Roberts v. Roberts, 2015 ONCA 450.

Application of the Law to the Facts of this Case

[61] The father has breached the following orders:

1. His refusal to abide by the Court order to pay for child support for his children, notwithstanding his ability to do so, based on his own sworn financial statement;

2. His refusal to provide further court ordered financial disclosure to accurately determine his income for child support purposes;

3. The father did not comply with the order dated August 24, 2017 for treatment or counselling, although he did provide an email from Families in Transition that he was registered for some kind of session scheduled for one day on January 24th, fourteen days after the court hearing. No further information was provided concerning the nature of this session, or the duration, if anything longer than one day.

[62] The father did finally comply with the court order for a psychiatric assessment. The father's compliance was at the eleventh hour, six months after the court order was made and several months after the court had repeatedly urged the father to do so. However, the assessment itself, as previously noted, has very significant limitations and was completely inadequate.

[63] It is a very brief assessment that took place on a single day for an undisclosed period. No psychometric testing was conducted. It was based entirely on the father's self-reporting. It contains obvious misrepresentations and omissions by the father. The psychiatrist was unaware of the father's criminal convictions for a number of violent offences. The psychiatrist was unaware of the OCL's investigation and report, which included the clinical investigator's findings and recommendation that the father's access continue to be suspended pending certain conditions, including counselling and treatment for his anger issues.

[64] The psychiatrist did not have the benefit of observing the father's conduct over a number of different days. Based on the father's behaviour in court on a number of occasions, as well as the findings of the clinical investigator, and the father's history of criminal convictions for violent offences, it is difficult to understand how the psychiatrist described the father as simply having "a short fuse" and that he did not find any evidence of "anger discontrol."

[65] Again, in fairness to the psychiatrist, Dr. Jeffries acknowledged that the report was based entirely on the father's self-reporting. He did not have the benefit of hearing both sides or of receiving any independent information from collateral sources. Dr. Jeffries did suggest that a more independent assessment be conducted if the report was rejected.

[66] The court is very concerned about the father's behaviour throughout this case, having been the case management judge for several months. I was able to directly observe the father's erratic, volatile, abusive and extremely angry behaviour in court over a number of court appearances. It was necessary to call security on two occasions during the case management process.

[67] The children are only 5 and 3 years old. They are very vulnerable. There is evidence that they have witnessed their father's anger and violence directed at their mother, their primary caregiver since the separation.

[68] I do not consider the breach of the child support orders and the order for financial disclosure sufficient to strike the father's pleadings in this case, but I do consider the breach of the orders regarding an assessment and counselling very significant, given the potential risk to the children if access is reinstated, or it is not being supervised by qualified professionals.

[69] In my view, this is one of those exceptional cases where the father's pleadings should be struck for failure to comply with the following orders: 1) to engage in a meaningful and complete psychiatric or psychological assessment with full disclosure to the psychiatrist or psychologist conducting the assessment, and 2) for failure to engage in any meaningful counselling to address his anger and aggression, pursuant to the temporary orders made.

[70] Having said that, I wish to emphasize that the above order is made without prejudice to the father's pleadings being reinstated on the following terms:

1. The father shall engage in a meaningful psychological or psychiatric assessment. This means that the father shall provide the assessor with a copy of this complete decision, a copy of the complete Report of the Office of the Children's Lawyer, and a complete record of the father's criminal convictions. The assessor shall also contact and speak to the mother and her counsel and obtain information and perspective regarding the father's conduct from them. The assessor shall also, if possible, conduct psychometric testing on the father. The father shall provide the name of the assessor to mother's counsel and sign a release to permit the psychiatrist to speak to these collaterals when completing his assessment.

2. The father shall engage in meaningful counselling with a qualified therapist to address his anger and aggression. Again, the father shall provide a copy of this decision to the therapist, as well as a copy of the report of the Office of the Children's Lawyer. The therapist shall provide a written report regarding the father's progress, the number of counselling sessions attended, and the outcome;

3. The father's willingness to engage in supervised access by qualified supervisors through Access for Parents and Children in Ontario (APCO).

[71] Given that the father's pleadings have been struck, based on the evidence before me, then paragraphs 4 and 5 of the Temporary Order dated September 26, 2017 and the temporary Orders of August 24, 2017 and April 21, 2017 shall be made final until further court order. The mother's counsel shall draft a Final Order for the Court's approval including the above terms at paragraphs 69 and 70 and the terms of the temporary orders. The father's approval is dispensed with.

[72] The father shall have a right to move to set aside the Final default order should he take meaningful steps to comply with the orders above.

[73] If the mother is seeking costs, then written cost submissions shall be limited to three pages in length, not including offers to settle and bills of costs, and delivered within 15 days from the date of this decision. Any response to be delivered within 15 days following receipt of cost submissions.

Released: May 7, 2018

Signed: Justice Sheilagh O'Connell

Footnotes

[1] According to his sworn Financial Statement dated February 14, 2017, the father earned $86,000.00 in 2016.

[2] According to the mother's sworn evidence filed, the father contacted many of the mother's friends and family members on Facebook and other social media and reported that she was a "whore", a "cunt", a "deadbeat mother" and so on, including reporting that she is taking the children away from him and denying him access. Several family members and friends contacted the mother to notify her.

[3] The father had contacted the mother's counsel and advised her that he would be bringing an urgent motion on that day. Ms. Smythe attended court and waited all morning and attempted to ascertain if the father had brought a motion. The father did not bring any motion, and the matter returned in the afternoon at the previously scheduled time.

[4] The father made the payment of $24.00 in 4 payments of $2.00 each and 2 payments of $8.00 each between November 19, 2016 and December 4, 2016.

[5] See paragraph 30 of the Court's decision.

[6] 2013 ONCA 641

[7] 2010 ONCA 92, 2010 ONCA 92, 75 R.F.L (6th) 33, at paragraph 47.