Court Information

Court File Number: 449/15

Ontario Court of Justice

Address: 7755 Hurontario Street, Brampton, ON L6W 4T6

Endorsement

Justice: A.W.J. Sullivan

Parties and Counsel

Applicant: M. McGregor Counsel: Todd Jenney

Respondent: A. Beckford Counsel: Self-represented

Decision

[1] This is the decision on a Motion to Strike brought by Ms. McGregor.

[2] The motion is located at Tab 9 of Volume 2 of the Continuing Record.

[3] It is supported with affidavits located at Tab 10 and 12 of the Continuing Record.

[4] The respondent to this motion, Mr. Beckford, filed an affidavit at Tab 11 of Volume 2 of the Continuing Record.

[5] Ms. McGregor through counsel, Mr. Jenney, requests that this court, pursuant to Rule 1(8) of the Family Law Rules should consider striking the amended application of Mr. Beckford dated April 11, 2018 for his failure to comply with several orders as follows:

a) Consent Order of July 31, 2017 which contained amongst other clauses the following:

…for the release of all medical records, notes, discharge summaries etc. pertaining to the child Mitchell Beckford born […], 2007 from any and all medical treating facilities including but not limited to, Georgetown Hospital and Recovery West. The records for Alvin Beckford Junior shall be released forthwith on the request of either party.

b) January 30, 2019 Order of Justice Parent from a trial audit ordering the parties to file updated financial statements and proof of 2018 year-end income and 2019 year to date income by applicant father. Respondent mother shall provide her 2018 year and 2019 year to date income given the undue hardship argument claim SOL (standard of living calculations) to also be exchanged. This must be done by March 29, 2019.

c) April 10, 2019 Consent Order for Financial Disclosure:

• By no later than May 1, 2019, the applicant shall provide to the respondent complete copies of the following documentation:
  • Any and all documents from his employer confirming that the applicant's hours have been reduced.
  • The Final Order from the Newmarket court case file FC 08-031269-00.
  • All documents filed in any Motion to Change with respect to any child of the applicant's.
  • Up-to-date FRO Director Statement of Arrears for any and all children of the applicant.
  • Any documentation upon which he will be relying for trial, including, but not limited to, any medical assessments or other documentation pertaining to either child of the respondents.

[6] Ms. McGregor argues that this matter is set for a second trial audit on July 17, 2019 and set to proceed to the trial sittings at the end of August 2019.

[7] The above noted financial disclosure is crucial to the issues at trial which include custody, access, child support and an undue hardship argument brought by Mr. Beckford in his amended application. Ms. McGregor deposes that her counsel on May 10, 2019 wrote to Mr. Beckford requesting the court ordered document disclosure and has not received the same as of June 10, 2019 and that it is prejudicial to her to proceed to trial without having the requisite documentation to prepare without surprise at the trial.

[8] Mr. Beckford on his behalf filed in the affidavit of June 12, 2019, providing:

a) A letter dated April 24, 2019 from the City of Toronto, his employer.

b) The first two pages of a Motion to Change document filed at the Superior Court in Barrie, Ontario, file number FC 19-04770, between himself and a Ms. McNabb.

c) The front cover of a 2nd Motion to Change filed in this court with file number 1211/06.

d) A Director's Statement from the Family Responsibility Office regarding himself and Ms. McNabb, ending May 2019 showing $18,406.27 in arrears.

e) A Summons to Witness to the social worker from the OCL.

[9] Ms. McNabb in her reply affidavit to the above argues that although Mr. Beckford has provided some documents, the vast majority of the court ordered disclosure remains outstanding.

[10] In particular the letter from the employer is lacking information.

[11] Only a few pages from the Motions to Change have been provided and in particular no change of information form and no financial statement that are required to be filed have been disclosed. Mr. Jenney also suggested that the wording of the above disclosure orders also meant that Mr. Beckford was to disclose the recipient's pleadings.

[12] Final Orders from the Newmarket file number FC 08 031269-00.

[13] Any documents pertaining to the medical records of the children.

[14] Further Mr. Beckford, although ordered to contact the OCL who authored the section 112 report that will be part of this upcoming trial, by the end of April 2019 only did so on or about May 24, 2019. It is now known that the social worker, Ms. Majewski, is unable to attend trial at the end of August save and except for possibly one day. Both sides are required to have her present in order to cross examine on her recommendations and work in preparing the section 112 report.

[15] Finally, Mr. Jenney pointed out that the SOL (standard of living) calculations that were ordered by J. Parent to be exchanged by March 29, 2019 has not been done and therefore again Ms. McNabb is prejudiced in understanding and being able to respond to any potential argument brought by Mr. Beckford at trial in this regard.

[16] Mr. Jenney, on behalf of Ms. McNabb, argues that without the above documents in his hands at this time his client is prejudiced in that she has complied with all orders at this stage and that it is unfair if Mr. Beckford is able to go forward at trial without producing the requested documentation for arguments that he is anticipated to make regarding the children and in particular regarding his hardship argument for child support.

[17] Mr. Beckford in his defence indicated that he was delayed in producing a letter from his employer although he had asked for it earlier, he was only given it recently although dated in April 2019.

[18] He was delayed in filing Motions to Change both with Ms. McNabb and another recipient in Brampton as the files were in storage and needed to be brought forward. He felt that simply providing the few pages that he has regarding these files is sufficient to show that he has commenced these actions in relation to other child support obligations.

[19] He felt he has provided the Final Order to the Newmarket court case mentioned above and that he will obtain the Director's Statement pertaining to any support payments that is currently being enforced, as soon as possible, as well as provide the standard of living arguments as soon as possible.

[20] Mr. Jenney notes that at the trial audit at the end of January 2019, for the first time Mr. Beckford requested the trial be adjourned as he was representing himself and needed more time. Mr. Jenney further argues that Mr. Beckford has dragged his feet throughout this process and has had months to provide disclosure documentation which are crucial to his argument and to Ms. McNabb's ability to respond adequately and without surprise at trial.

Law Considered

[21] Below is the law that I have considered as it pertains to the request to strike pleadings in a family law matter.

[22] This relief is one that the court should not employ lightly as a consequence of one party not being able to present an argument and/or participate in the proceedings affects the ability of the court to have all of the relevant information available in deciding issues that affect children and families.

[23] At the same time, however, this must be balanced in relation to fairness to both parties and to the integrity of the process in family law litigation to resolve issues in a timely fashion, provided that the parties have been given adequate opportunity to respond to requests for disclosure and/or prepare their case.

[24] The overview of the law that I have considered has been provided in a recent paper from Justice Chappel, entitled Striking Pleading in Family Law (presented at the Halton Law Assoc. CLE June 2019) Below are certain sections of this paper which I have taken the liberty to reproduce which are relevant to this motion.

I. Overview

The courts have the discretion to strike all of or portions of an Application, Answer and Claim, Motion to Change Final Order or Response to Motion to Change in Family Law proceedings on the following grounds:

1. Failure to plead the necessary material facts in support of a claim or defence;
2. Failure to comply with court orders and/or the Family Law Rules;
3. The pleading does not set out a reasonable claim or defence in law; or
4. The pleading may delay or make it difficult to have a fair trial, or is inflammatory, a waste of time, a nuisance or an abuse of the court process.

Each of these grounds is discussed in further detail below.

The Family Law Rules do not specifically refer to the word "pleadings," and therefore an order striking a pleading in the Family Law context should refer specifically to the document which is being struck, ie. The Application, Answer and Claim, Motion to Change Final Order or Response to Motion to Change (Mullin v. Sherlock, 2018 ONCA 1063).

II. The Three-Pronged Test on Every Motion to Strike a Pleading

On a motion to strike a pleading on any basis, there are three broad issues that must be determined:

1. First, is there a triggering event justifying the striking of the pleading?

2. Second, should the pleading be struck in whole or in part, or is a less drastic remedy more appropriate?

3. Third, if the pleading is struck in whole, what are the appropriate consequences for the party whose pleading was struck? For example, should the party be granted leave to file an amended pleading or be accorded limited rights of participation in remainder of the case?

(Mullin, at paras. 44-47)

With respect to the third stage of the analysis, Rule 1(8.4) of the Family Law Rules sets out the default consequences of striking out a party's pleading. Essentially, it provides that unless a court orders otherwise the party has no further rights of participation, and the matter can proceed on an uncontested basis:

Consequences of Striking Out Certain Documents

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:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party's absence.
4. A date may be set for an uncontested trial of the case.

III. The Primary Purpose of the Family Law Rules is a Key Consideration

In dealing with any type of motion to strike a pleading, the court must keep in mind the primary purpose of the Family Law Rules, as set out in Rule 2(2), which is to deal with cases justly. Rule 2(4) requires the court to apply the Rules to promote this primary objective (Mullin).

Rule 2(3) assists the court in carrying out this obligation by specifying that dealing with cases justly includes the following:

Dealing with Cases Justly

2(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.

Rule 2(5) is also relevant to the analysis, specifically subsections (a) and (e). This Rule provides that the court shall promote the primary objective of the Rules by active case management of cases, which includes (emphasis added):

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost.

(Dhieux v. Potter, 2013 ONSC 7881, at paras. 20-21).

IV. Striking a Pleading is a Remedy of Last Resort, Reserved for Exceptional Circumstances

In Family Law litigation, striking a party's pleading is a remedy of last resort. A pleading should only be struck and trial participation denied in exceptional circumstances, where no other remedy would suffice (Marcoccia v. Marcoccia, 2008 ONCA 866, at para. 3; Purcaru v. Purcaru, 2010 ONCA 92, at para 47; Chiaramonte v. Chiaramonte, 2013 ONCA 641, at paras. 31-33; Kovachis v. Kovachis, 2013 ONCA 663 at para. 24; Vetro v. Vetro, 2013 ONCA 303, at para. 3; Roberts v. Roberts, 2015 ONCA 450, at para. 15; Wouters v. Wouters, 2018 ONCA 26, at para 45; Mullin, at para. 33; Holly v. Greco, 2019 ONCA 464, at para. 6). There are two general rationales for this approach, as follows:

1. First, the exceptional nature of the remedy is rooted in the significance of the adversarial model in our legal system. As the Ontario Court of Appeal stated in Purcaru, at para 47:

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. Accordingly, the objective of a sanction ought not to be the elimination of an adversary, but rather one that will persuade the adversary to comply with the orders of the court.

2. The second related rationale for the limited availability of the remedy is that a party's lack of participation at trial may result in the court not having enough information or fully accurate information to reach a just result (Kovachis, at para. 25). If the judgment establishes continuing obligations that can only be varied if there are changed circumstances, this injustice may be perpetuated on a long-term basis (Purcaru, at para. 48; Mullin, at para. 34).

Given the drastic nature of an order striking a pleading, the responding party to a motion to strike must be given a reasonable opportunity to respond fully to the motion. In addition, the court has the right to review any documents filed in response to the motion which may not be technically compliant with the Rules, to ensure that any properly admissible portions are received (Wouters).

V. Special Considerations When Pleadings Involve Custody and Access Issues

Particular caution should be exercised before striking portions of pleadings dealing with custody and access issues. As a general principle, it is preferable to avoid the sanction of striking pleadings where the interests of children are at stake. The reason for this is that the court typically requires the participation of both parties in order to make custody and access decisions that are in the best interests of children. (Haunert–Faga v. Faga, 2005 CarswellOnt 5229 (C.A); King v. Mongrain, 2009 ONCA 486 (CA.); Purcaru, at para. 48; D. (D.) v. D. (H.), 2015 ONCA 409 (C.A.); Van v. Palombi, 2017 ONSC 2492 (Ont. Div. Ct.), at paras. 42-43).

Despite the caution required before striking pleadings respecting custody and access issues, this remedy may be appropriate in certain circumstances. For instance, the fact that the Office of the Children's Lawyer is involved and able to represent the child's interests may be a relevant factor (Haunert-Faga; D. (D.) v. D. (H.)).

If the custody and access claims are struck, the court should consider including a provision permitting those claims to be revived if the problems justifying the order are rectified (Haunert–Faga; Parham v. Jiang, 2014 ONSC 3293 (S.C.J)). Alternatively, if the court determines that that there should be no possibility of reviving the claims, it should consider granting the party whose claims were struck limited rights to participate in the proceeding with respect to the custody and access issues only (Van v. Palombi, at paras. 44-47).

B. Rule 1(8) (c): Striking for Failing to Comply with Court Orders

Rule 1(8) of the Family Law Rules outlines the powers of the court in response to a failure on the part of a person to obey a court order in a case or a related case.

The Rule stipulates that where a party has failed to comply with a court order, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including an order striking a pleading or any other document filed by a party:

Failure to Obey Order

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

(a) an order for costs;

(b) an order dismissing a claim;

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

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

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

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

(g) on motion, a contempt order.

C. Rules 1(8.1) and 1(8)(c): Striking for Failing to Comply with the Family Law Rules

Rule 1(8.1) of the Family Law Rules addresses the court's powers in response to a failure on the part of a person to follow the Rules.

The Rule provides that the court can deal with the failure by making any order described in Rule 1(8), as set out above, other than a contempt order.

Accordingly, the court may also strike a pleading in response to non-compliance with the Family Law Rules:

Failure to Follow Rules

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

D. Section 24 (a) of the Child Support Guidelines (Ontario) and Federal Child Support Guidelines: Striking for Failing to Comply with a Disclosure Orders Made under the Guidelines

The Federal Child Support Guidelines and the Child Support Guidelines (Ontario) set out the basic financial disclosure that each party must make where there is a claim for child support.

If a party fails to comply with their disclosure obligations, the other party may apply for an order pursuant to section 22(1)(b) requiring that party to provide the financial disclosure to them and the court.

Section 24(a) of the Guidelines provides that if a party fails to comply with a disclosure order made under section 22(1)(b), the court may strike out any of that party's pleadings:

Child Support Guidelines (Ontario)

Failure to comply with court order

24. Where a parent or spouse fails to comply with an order issued on the basis of an application under clause 22 (1)(b), the court may,

(a) strike out any of the parent's or spouse's pleadings;

Federal Child Support Guidelines

Failure to comply with court order

24. Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may

(a) strike out any of the spouse's pleadings…

II. General Principles Regarding Striking of Pleadings for Failure to Comply with Court Orders and Rules

Provisions addressing the consequences of non-compliance with court orders and Rules are important tools for judges presiding over Family Law matters to prevent a party from embarking upon the game of litigation abuse. The scope of these provisions must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner.

As with all requests to strike pleadings, this remedy should only be invoked in response to non-compliance with orders and Rules in exceptional circumstances, and as a last resort where no other remedy would suffice (Marcoccia, at para. 3; Purcaru, at para 47; Chiaramonte, at paras. 31-33; Kovachis, at para. 24; Vetro, at para. 3; Roberts, at para. 15; Mullin, at para. 33; Holly, at para. 6). The determination of whether to grant this relief involves a balancing of several interests, including the aggrieved party's interest in obtaining a meaningful remedy for the alleged breaches, the other party's interest in having their case heard by the court, the desirability of having fulsome evidence in addressing Family Law issues and the overarching consideration of ensuring respect for the administration of justice through compliance with orders and Rules of the court.

While various interests must be balanced before a pleading is struck for non-compliance with orders and Rules, the analysis must be carried out keeping an eye on the need for an effective, efficient and affordable Family Law justice system that is sensitive to the needs of the litigants. Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge's mind in considering remedies for a party's failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice.

A judge can make an order striking a pleading for non-compliance with orders or Rules at a settlement conference if there was a previous order directing that a pleading be struck in the event of non-compliance, the offending party admits to the non-compliance, they received notice that the request to strike would be made at the conference, and the settlement conference judge is satisfied that the order to strike is the most appropriate remedy (Burke v. Poitras, 2018 ONCA 2015 (C.A.)).

III. General Principles Applicable Specifically to Motions to Strike for Non-Compliance with Disclosure Orders and Rules

The failure of a party to comply with orders or Rules regarding financial and other disclosure is the most common basis in the case-law for seeking to strike pleadings in Family Law cases.

The Ontario Court of Appeal has emphasized that although striking pleadings is limited to exceptional circumstances, a party's wilful non-compliance with disclosure obligations and orders "must be considered egregious and exceptional," having regard for "the continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation" (Manchanda v. Thethi, 2016 ONCA 909 (C.A.), at para. 10, leave to appeal refused, [2017] S.C.C.A No. 29 (S.C.C.)). The Supreme Court of Canada refused leave to appeal this decision, and has therefore endorsed this proposition. In Peerenboom v. Peerenboom, 2018 ONSC 5796 (S.C.J.), at para. 24, Moore J. emphasized that the Court of Appeal's earlier comments about the exceptional status of striking pleadings for non-compliance with court orders or disclosure obligations "must be read with this more recent interpretation in mind."

The court's approach to striking pleadings for failure to comply with disclosure orders and Rule is founded on the critical importance of ensuring and enforcing disclosure of relevant information in Family Law cases in order to achieve a fair and just result. In Roberts, at paras. 11-12, Benotto, J.A. stated as follows:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

The Ontario Court of Appeal has also stressed the need for effective remedies in the face of non-compliance with disclosure obligations, orders and Rules. In this regard, it commented as follows in Mullin, at para. 41:

Judges presiding over family law disputes are frequently faced with mounds of material, a busy court docket and pressure to process files expeditiously. Repeated and frequent motions for disclosure are often necessary, though they should not be. As stated by Benotto J.A. in Roberts, at para. 12, delinquencies add significant expense to proceedings and consume substantial judicial time and resources. Counsel and their clients should not expect that repeated adjournments and indulgences will be given to instances of non-disclosure. Furthermore, an effective remedy for inadequate or non-disclosure should be available.

While full and frank disclosure is a necessary component of Family Law litigation, the Ontario Court of Appeal has also emphasized that exhaustive disclosure may not always be appropriate. It has held that the principle of proportionality applies with respect to disclosure, with the result that requests for disclosure should take into consideration the importance and materiality of the disclosure in question having regard for the issues involved in the litigation (Kovachis, at para. 34).

The principle of proportionality has become a key element of the analysis in motions to strike pleadings for non-compliance with disclosure orders and Rules.

Proportionality in regard to disclosure requires that the courts and the parties consider "the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance…Disclosure orders must be fair to both parties and appropriate to the case" (Kovachis, at para. 34; Manchanda, at para. 9; Mullin, at para. 33).

Discussion and Decision

[25] Considering the above facts, arguments and the law it is clear to me that there were several orders made on consent for disclosure and that the dates for this disclosure came and went without Mr. Beckford producing the material in question.

[26] This I find in particular applies to the issue of documents that pertain to his hardship argument as it relates to his ability to pay child support which I will return to later.

[27] On the issue of striking his pleadings as it pertains to custody and access I do not find that he has the same responsibility as it relates to the issue of financial disclosure and/or documents that would substantiate his hardship argument.

[28] It is true that he has raised issues of the children's well-being and medical reports in this regard. However, when one looks at the earlier disclosure order on consent from the July 31, 2017 court appearance, I believe both parties had the ability to obtain the release of any medical records and not solely the responsibility or in the control of Mr. Beckford to do so.

[29] It is true that in the April 10, 2019 Consent Order, again it is mentioned that he is to disclose by May 1, 2019 any medical assessments or other documentation pertaining to the child that he intends to use at trial. To date he has not done so.

[30] There was also the issue of his lateness in notifying or producing a subpoena to Ms. Majewski, the author of the section 112 report, from the Office of the Children's Lawyer.

[31] I believe that in relation to the issue of custody and access the rules of evidence will be sufficient to address any issues regarding the children's care by Ms. McGregor raised by Mr. Beckford at a trial. To date Mr. Beckford has not filed any expert report nor has he asked to do so. The rules of evidence dealing with business records and how these are used and hearsay rules would protect a party in a trial.

[32] I am not certain if Ms. Majewski was notified in April 2019 whether or not she would still be available for trial or when she had planned to be out of the country for vacation, which happens to coincide with the trial weeks in the Brampton OCJ in August 2019.

[33] Therefore I do not see the evidence that would support striking Mr. Beckford's claims as it pertains to custody and access.

[34] Further I am mindful of the above noted decisions that direct that when it comes to the best interest of children the court benefits from the evidence of both parties in arriving at a decision based on a fulsome record. This request is denied.

[35] In relation to the issue of the disclosure that supports Mr. Beckford's claim of undue hardship, I note the following:

• Mr. Beckford was granted the ability to amend his application to bring this argument forward. This he did well over a year and a half ago.

• This request was fair and balanced to all, with adequate time to flesh out this argument which up until today he has not done.

• The disclosure that has been requested as noted above and not provided is important material to the central question of his hardship argument at trial.

• Most if not all of the documents requested are in Mr. Beckford's control.

• He indicates there was delay in obtaining the previous court files and therefore there was a delay in producing Motions to Change documents that he has commenced. Although this might be the case, regarding filing in those courts, this did not interfere with him producing and disclosing his materials ready to be filed, despite the fact that the old files might not have been present. He now has disclosed only a few pages from each of the 2 Motions to Change and as well he did not disclose some of the crucial documents as it pertains to these actions, in particular, the financial statements and change of information forms from these two actions in Barrie and in Brampton. These documents are in his control. There was some discussion about whether Mr. Beckford should also produce the responding pleadings to these motions to change. I believe that Mr. Jenney has the responsibility to obtain these or he can always subpoena the recipients in those other child support actions.

• Mr. Beckford should have provided all of the FRO Director's Statements that he claims are being enforced. This is also significant information that a court would want at trial and Ms. McGregor needs to prepare for trial.

• Mr. Beckford had it in his control the ability to produce his Standard of Living Arguments/calculations as directed by Justice Parent in January 2019 at which time he requested an adjournment of the trial and was granted the request. He has not done so.

[36] None of the requested disclosure was onerous on Mr. Beckford. He was given ample time to provide the documentation. The process was fair to him and not having it today is not fair to Ms. McGregor in preparing for trial which could go forward at the end of August 2019. This is to be decided at the upcoming trial audit schedule for July 17, 2019 at 9:00 a.m. in courtroom 201.

[37] Mr. Beckford is the Applicant moving party in this matter and has approached the court requesting orders that will assist him and his children and family moving forward in their lives. As such he also has a responsibility to the court process in which he is relying on for some relief. He has let this process down by not producing timely disclosure and in so doing placed Ms. McGregor in a prejudicial situation.

[38] The court is mindful to its obligation found in Rule 2 to assure that matters are moved forward in a timely fashion, considering the importance of the issues, and resources available and to assure that the matters and the parties are dealt with in fair way.

[39] This obligation is not only that of the Court but lawyers and litigants as well.

[40] The above jurisprudence also asks if the offending party has done so intentionally.

[41] Whether Mr. Beckford is intentional in his non-disclosure, I cannot for certain decide, however with the passage of time objectively at the end of the day without the necessary disclosure the effect of this on the fairness to Ms. McGregor, to the Judge deciding the trial, and to the administration of justice, is obvious.

[42] Further delay to obtain this disclosure is not a guarantee that it will be produced as Mr. Beckford has had ample time to do so.

[43] I am mindful of the court statement in Levely supra:

… The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judges mind in considering remedies for a party's failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must, with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit the failed justice.

[44] At this stage this matter has been before the court since May 7, 2015. Far too long. I am not saying that Mr. Beckford is the author of this entire delay but at this stage the matter must move forward.

[45] The next issue is can I find a balanced approach to the remedy sought. And in this motion given the issues raised I find that a balanced order at this stage is as follows:

Order

A) Paragraphs 6 and 7 found at page 5 of Mr. Beckford's Amended Application filed April 11, 2018, Tab 14 of Vol 2 of the Continuing Record, in relation to a hardship argument, section 10 of the Child Support Guidelines, are struck.

B) Mr. Beckford will not be able to raise this argument or produce documents at trial to support this argument unless provided leave to do so by a further order of this court.

C) If after the trial audit on July 17, 2019, this matter is not set down for trial, Mr. Beckford may apply for leave, with notice to Ms. McGregor, to reinstate his claim of a hardship argument provided that he has complied entirely with the disclosure orders noted above, specifically: (the orders are reproduced below for ease of reference regarding the disclosure documents that need to be produced before leave may be applied for – ignore the dates).

i) January 30, 2019 Order of Justice Parent from a trial audit ordering the parties to file updated financial statements and proof of 2018 year-end income and 2019 year to date income by applicant father, respondent mother shall provide her 2018 year and 2019 year to date income given the undue hardship argument claim SOL (standard of living calculations) to also be exchanged. This must be done by March 29, 2019.

ii) April 10, 2019 Consent Order for financial disclosure,

• by no later than May 1, 2019 the applicant shall provide to the respondent complete copies of the following documentation:
  • Any and all documents from his employer confirming that the applicant's hours have been reduced.
  • The final order from the Newmarket court case file FC 08-031269-00.
  • All documents filed in any Motion to Change with respect to any child of the applicant's. (This should be Mr. Beckford's documents)
  • Up to date FRO Director Statement of Arrears for any and all children of the applicant.

Released: July 3, 2019

Justice A.W.J. Sullivan