Court File and Parties
Ontario Court of Justice
Date: October 29, 2018
Court File No.: 16-0550
Between:
Trina Robinson Applicant
— And —
Matthew Delorme Respondent
Before: Justice M.G. March
Heard on: October 18, 2018
Decision Released: October 29, 2018
Counsel
Duncan Crosby ........................................................................................ for the Applicant
John Allan ............................................................................................. for the Respondent
Interim Order
M.G. March J.:
Endorsement
[1] On July 4, 2018, I made an Order requiring the Respondent, Mr. Delorme, to pay to the Applicant, Ms. Robinson, the sum of $500.00 on or before October 1, 2018. The clear intent of that Order was to require Mr. Delorme to partially satisfy existing costs awards made against him, failing which his pleadings would be struck. Mr. Delorme has not paid one penny of that $500.00 sum to date.
[2] Over the course of this proceeding - a Motion to Change a Final Order brought August 11, 2016 seeking to grant Ms. Robinson access to her and Mr. Delorme's daughter, N., born […] 2010 – costs awards were made against Mr. Delorme as follows:
- a) on July 10, 2017 in the sum of $1,500.00,
- b) on December 4, 2017 in the sum of $250.00,
- c) on February 28, 2018 in the sum of $250.00, and
- d) on April 10, 2018 in the sum of $1,500.00.
[3] I appreciate that Mr. Delorme may be a man of modest means. In submissions, he has told me he has worked hard his entire life. This may well be true. However, he has not filed a Financial Statement to explain his sources of income under oath or by solemn affirmation. I have only received his and his counsel's assurances that he is at present on social assistance. I am told he is a dependent of his fiancée, who is entitled to benefits under the Ontario Disability Support Plan, or Ontario Works. That, apparently, is his only income.
[4] My Order on July 4, 2018 that Mr. Delorme must pay a reasonable, modest sum toward costs awarded against him to date was commensurate with what I suspect is indeed a limited ability to pay on his part. The indigent should never be foreclosed from participation in court proceedings affecting them or their dependents based solely on an inability to pay. Access to justice must be universal.
[5] Yet, Mr. Delorme has made little to no effort to participate in this proceeding. The only pleading he has filed was an Answer on October 14, 2016 – nothing else. He was forewarned as to what would occur if he did not pay $500.00 over the course of the three months he was given. It was not too much to ask. He had to come up with $166.66 per month between July 4, 2018 and October 1, 2018. He did not.
[6] The $500.00 amount I set was very much a test of his commitment to show respect for the Court. It was a modest threshold he had to meet in order to demonstrate a willingness to re-engage, and win back the right to participate in this matter. Sadly, he chose not to fulfil this obligation.
[7] Consequences must flow for breaches of Court Orders. Otherwise, our system crumbles.
[8] Rule 1(8)(c) of the Family Law Rules provides:
"1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(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."
[9] Further, Rule 1(8.4) of the Family Law Rules states:
"1(8.4) If an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
- a date may be set for an uncontested trial of the case."
[10] I have absolutely no confidence that Mr. Delorme wishes to participate in a trial of this matter. Indeed, on the earlier trial dates set – July 3-5, 2018 inclusive – he instructed his counsel, Mr. Allan, not to attend.
[11] I had hopes that when Mr. Allan came on record to assist Mr. Delorme in April 2018, I would have witnessed a change in attitude on his client's part. Unfortunately, that has not occurred. Mr. Delorme did not pay the $500 in costs by the October 1, 2018 deadline. Worse still, he did not deliver to Mr. Allan N.'s Birth Certificate and Health Card, as ordered on July 4, 2018. As the interim, custodial parent, Ms. Robinson needed these documents. Mr. Delorme did not act in his child's best interests by withholding them, or by refusing to provide an explanation for not handing them over.
[12] I can only surmise that Mr. Delorme remains incensed that I changed the custodial arrangement on an interim basis for his daughter, N. For good reason, I did so. Those reasons were articulated in my decision of April 10, 2018 granting interim custody to the Applicant, Ms. Robinson, N.'s mother. Since that time, Mr. Delorme has effectively refused to adhere to the orders and directions of this Court to an ever greater degree than he had previously. His conduct borders on contemptuous.
[13] In his Answer filed October 14, 2016, Mr. Delorme relied upon advice given to him by one Carrie Mulligan, a Family and Children's Services Worker, that he should allow no access to N. for Ms. Robinson. Apparently, Ms. Robinson was in an extreme state of intoxication on December 23, 2015, while N. was in her care. Police were contacted when Ms. Robinson and the homeowner of the Christmas house party she was attending were involved in a physical confrontation. Ms. Robinson later expressed thoughts of suicide to friends via text message. N. was returned to Mr. Delorme's care as a result.
[14] Since that incident on December 23, 2015, Mr. Delorme has attempted to frustrate, and/or has outright denied Ms. Robinson any right of access to N. He has ignored the reality of Ms. Robinson's successful rehabilitation from addiction, and re-integration into the work force. He has failed to appreciate the evidence presented to him, which clearly shows that Ms. Robinson now, and for the last two years or more, has led a stable, sober lifestyle.
[15] Mr. Delorme appears unbending in his view that Ms. Robinson is not a fit parent. He refuses to acknowledge the positive strides Ms. Robinson clearly has made. Furthermore, he has proven himself time and again to be non-compliant with the orders, and rules of the Court.
[16] I repeat I do not expect any meaningful participation from Mr. Delorme, were this matter to proceed to trial as scheduled on January 2nd through 4th, 2019 inclusive. I shall therefore direct the Court Clerk to vacate those dates.
[17] Virtually every decision I have made in my short tenure as a Family Court judge has had at its core the achievement of what is in the best interests of the child. This one is no different. My decision has nothing whatsoever to do with Mr. Delorme's impecuniosity. It has everything to do with his disdain for this Court and its process.
[18] The Applicant, Ms. Robinson, may proceed to an uncontested trial of the issues by filing affidavit evidence pursuant to Rule 23(22) of the Family Law Rules.
Released: October 29, 2018
Signed: Justice M.G. March