Court File and Parties

Date: June 14, 2019

Court File No.: F230/17

Ontario Court of Justice

Between:

Amy Moses Applicant

— And —

Chris Stephens Respondent

Before: Justice K.A. Baker

Heard on: June 11, 2019

Reasons for Judgment released on: June 14, 2019

Counsel

A. Macdonald ……............................................................................ Counsel for the Applicant

E. Carroll …………………………………………………………..………………………… Counsel for the Respondent

Judgment

BAKER, J.:

Background and Procedural History

[1] This is a motion by the Respondent seeking to amend his pleadings and to re-open the partially heard motion for summary judgment so as to allow him to file further evidence.

[2] This litigation has wound a rather tortuous path through the court.

[3] The matter began straightforwardly enough. In July of 2017, the Applicant mother, Amy Moses commenced an Application seeking custody and support for the subject child Malikai Roman Markus Moses, born […], 2017. The Respondent filed an Answer disputing paternity and disputing the Applicant's claims for custody and support. No other claim was advanced. At the first return date of September 18, 2017, the parties consented to orders for DNA paternity testing and for the Respondent to provide financial disclosure.

[4] By late 2017, the paternity test had been received, confirming the Respondent as the father of the child. On the next court date of January 15, 2018, the Respondent was given leave to file his 35.1 affidavit in support of custody and access, and Financial Statement to February 23, 2018. The Respondent did not do so. On the next court appearance of March 5, 2018, the Respondent was given a further opportunity to serve and file pleadings including an amended Answer, 35.1 and sworn Financial Statement until April 23, 2018. The matter was then scheduled for case conference on April 24, 2018.

[5] At the case conference, the parties entered into further minutes of settlement providing that the child would have his primary residence with the mother. The father was granted access on alternate Saturdays from 10:00 a.m. until 1:00 p.m. and such additional times as they might agree. There was police enforcement for these provisions. Notably, the order required that the parties share transportation for access, and meet halfway between their residences, in Brantford and Alliston respectively. It did not otherwise specify a place of exchange.

[6] The Order also required the Respondent to pay Guideline child support in the amount of $365.00 per month, based on an annual income of $40,375.00. The matter was then scheduled for Settlement Conference on June 4, 2018.

[7] The conference could not proceed on that date as the Applicant was ill. The parties did agree, through counsel (with the Respondent's counsel acting as agent), to an order requesting the involvement of the OCL.

[8] By the July 2018 appearance, difficulties had developed with respect to transportation. On July 30, 2018, the court ordered the Applicant to comply with the order of April 24, 2018 including providing the child for the access. The matter was then further adjourned to August 20, 2018 to, "ensure the access is taking place".

[9] On that return date, the court was advised that the most recent scheduled visit had occurred. As the Applicant had indicated an intention to bring a motion, the matter was adjourned to October 18, 2018 for scheduling of the anticipated motion.

[10] Although the OCL did accept the referral, its involvement was discontinued in the fall of 2018, as the required observation visit could not be scheduled. This seemed to be the result of impasse between the parties about the particulars of how such a visit would occur.

[11] Ultimately, the Applicant brought a motion for summary judgment. This was before the court on October 18, 2018, at which time it was scheduled for hearing on January 21, 2019. Argument of the motion commenced that day, with the Respondent represented by a second, different lawyer acting as agent. Applicant's counsel completed her submissions. The Respondent's then agent commenced her submissions. There was then a discourse between the court and Respondent's counsel. The first issue so discussed was that of custodial designation. The Respondent had taken the position that there was a genuine issue for trial on his proposal – not pleaded – for joint custody. The court noted the absence of evidence to support an inference that there was a reasonable prospect of the parties being able to communicate and cooperate around decision making for the child. The following exchange then ensued:

THE COURT: But there really isn't any evidence that they can communicate and cooperate such that they can make decisions together, is there?

MS. MASSEY: No Your Honour, you're absolutely right.

THE COURT: Okay.

MS. MASSEY: And so . . .

THE COURT: So how is there possibly a triable issue, or an issue that requires trial on the issue of custodial designation?

MS. MASSEY: Well uh, yuh, you're absolutely right, not, the, the respondent does concede that the child does live primarily with mother; that the child is primarily in mother's care, and has been since, since birth. If Your Honour is content to make a, a, an, an order at least with some of the claims with respecting, specifically respecting to custody of the child then, then I would submit Your Honour that would be a, uhm, that would, that would make some sense because that is, those are the facts at least in that respect.

[12] The court then said, "Let's talk about access". The court noted that the respondent had not advanced a claim for access in his pleadings. But the court was much more concerned that the Respondent had not put forward any kind of proposal about how access could work.

[13] At that point, the Respondent's agent indicated that father was seeking a resumption of the access pursuant to the temporary order of April 24, 2018, which provided for shared transportation and exchange at an undefined halfway point. The court then commented as follows:

"Right. So here's the problem with Mr. Stephens' position as I see it. We've got an order that isn't working. Mr. Stephens himself deposes in his affidavit at paragraph 13, and this was sworn December 20th 2018, again, 'given the distance between our respective residences, this would require some accommodation with the applicant with respect to transportation. I do not feel it is in the best interests of Malikai to be in a vehicle to be in a vehicle for more than two hours a day, nor can I carry the transportation costs of travelling to Brantford from Alliston on a regular basis'. So he's saying it's too long a drive, is what I'd take from that, and yet he hasn't got any other kind of proposal. So what am I to make of that?"

[14] There was then further discussion about the absence of evidence from the Respondent as to the quality of the visits that did occur under the April 24, 2018 temporary order. Thereafter, the court asked as to the Respondent's proposal for access. Respondent's counsel responded, "Well Your Honour I could, I could canvass that with Mr. Stephens. Or todays . . . This lead to the following exchange:

THE COURT: How can there be a genuine issue for trial on access if here we are at a motion for summary judgment, where it's Mr. Stephens' obligation to put his best foot forward, and he can't articulate a plan?

MS. MASSEY: Correct your Honour.

[15] The motion was eventually put over for the parties to have some discussions, after having received the benefit of the court's thoughts. It was adjourned to January 25, 2019 for minutes of settlement or scheduling of the continuation of the motion hearing.

[16] By that return date, the Respondent had fired his second lawyer agent. He did not personally attend, did not seek prior approval to participate by teleconference and did not file a form 14C to indicate his plans for dealing with the date. He was contacted by telephone and sought an adjournment to continue the motion three months later in April 2019 as the Respondent had indicated a plan to retain a third lawyer. The court was not prepared to schedule continuation due to a lack of certainty about availability of any counsel the Respondent might employ. The court did however grant the Respondent's motion to adjourn the hearing of the motion to permit him to retain new counsel. The matter was further adjourned to February 26, 2019 for scheduling a continuation of the motion, peremptory on the Respondent.

[17] The court also granted a temporary order providing the mother with sole custody of the child and suspending the Respondent's access. That order also provided that no further materials for the motion were to be filed without leave of the court.

[18] On February 26, 2019 the motion was scheduled for continuation on April 2, 2019. On that date, the Respondent, current and third lawyer, Ms. Carroll, attended as agent and brought an oral motion for adjournment of the hearing. This was granted, and the Respondent was granted leave to commence the herein motion to amend his pleadings. Hearing was set for June 11, 2019. Costs were ordered against the Respondent for the second time.

[19] By late May 2019, the Respondent had still not paid the costs ordered on April 2, 2019. As a result, the Applicant brought a counter motion to strike the Respondent's pleadings. Court was told that the Respondent paid these costs on the morning of the hearing of this motion, that is, June 11, 2019. The Applicant accordingly did not pursue her counter motion to strike.

The Proposed Amended Answer

[20] Attached to the Respondent's affidavit in support of this motion is a draft amended Answer. It seeks to advance claims for joint custody, Guideline table support and support other than Guideline for the child, as well as a restraining order. Various orders relating to incidents of custody are also pled.

[21] There are some unusual aspects to the draft amended Answer. This is particularly so in relation to the Respondent's claims around support. At paragraph 14, the Respondent requests an order for, "An interim and permanent Order the Respondent shall pay child support to the Applicant in accordance with his annual income and section 3 of the Child Support Guidelines." At paragraph 19, however, the Respondent asserts that, "it would be 'unconscionable' for him to pay full child support in accordance with the Child Support Guidelines, and be responsible for all transportation required to facilitate his access".

[22] The Respondent also includes a claim for undefined section 7 expenses and to impute income to the Applicant for that purpose. Further, he seeks an order that the parties be equally responsible for the transportation or that he receive a reduction in his monthly child support contribution to compensate for these costs. Nothing in the Respondent's amended Answer establishes a basis for imputing income to the Applicant.

[23] In submissions, in answer to a question from the court, the Respondent's now counsel indicated that the Respondent was NOT seeking to advance a s. 10 undue hardship claim. Rather, the claims for other than Guideline support are all apparently premised on a s. 7 claim.

Legal Framework for Amendment of Pleadings

[24] The law regarding motions to amend pleadings is well established. Pursuant to Rule 11(3) a court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. As noted in Stefureak v. Chambers (2005), O.J. No 1949, the Rule is mandatory. It does not matter whether the amendment is prompted by a change in the case or is merely an afterthought.

[25] The Respondent's request to amend his pleadings is most obviously an "afterthought". It's a very late in the day afterthought, coming some 21 months into this proceeding.

[26] The Applicant argues that she would indeed be prejudiced by this very late request by the Respondent to amend his pleadings. She argues that permitting this amendment would essentially send the case back to square one, thus prolonging the uncertainty about the child's situation.

[27] The Applicant's frustration with the Respondent's conduct of this case is certainly understandable. The child, however is only two years of age. He is not likely to have any understanding of the outstanding litigation or the attendant uncertainty.

Analysis of Prejudice and Child Support

[28] There is one area in which there is prejudice to the Applicant which cannot be compensated for by an order for costs or an adjournment. That is in relation to child support. The current temporary order of April 24, 2018 provides for monthly Guideline support of $365.00 per month based on an annual income of $40,375. The Respondent has now filed a sworn Financial Statement dated May 1, 2019 which indicates an annual income of $55,272. This gives rise to a Guideline table amount for one child of $510.00. Further deferral of the resolution of the matter to receive an amended Answer will include a deferral of the adjudication of the Motion for summary judgment. The upshot of that means that the Applicant will be deprived of the appropriate quantum of child support for an unknown period of time.

[29] The Respondent was asked if he would consent to an order adjusting child support to the appropriate Guideline figure. No such consent was forthcoming. The Respondent did not however offer any cogent reason why child support should not be adjusted at this point. The only argument advanced at hearing for reduction in child support was a s. 7 claim against the Applicant for contribution to his transportation costs. Given the Respondent is not currently exercising access and has no transportation costs, and has not even brought a motion to secure temporary access, there is no current foundation on which to deviate from a Guideline figure.

[30] The Respondent was given an opportunity to make submissions on the issue of quantum of temporary support. The court is able to ameliorate any prejudice to the Applicant by adjusting child support on a temporary basis in accordance with the Respondent's own evidence on income. That is an important consideration on the Respondent's request to amend pleadings.

Application of Rule 2 to Amendment Analysis

[31] Although Rule 11(3) is mandatory, it must also be applied having regard to Rule 2. Rule 2(2) provides that the primary objective of the Family Law Rules is to enable the court to deal with cases justly. As noted in subrule 2(3), dealing with cases 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.

[32] The Rule further imposes an obligation on the court to promote that primary objective by among other things, identifying the issues, and separating and disposing of those that do not need full investigation and trial at an early stage.

[33] The logical application of this Rule is that in determining whether to permit amendment of pleadings, the court should assess the prima facie merit of claims to be advanced by the amended pleadings. Permitting amendment of pleadings to pursue obviously meritless claims would result in unnecessary delay and expense and the pointless allocation of court time. This obviously runs contrary to the direction of Rule 2.

Analysis of Proposed Claims

Joint Custody Claim

[34] This court had the benefit of previously reviewing all materials filed for the motion for summary judgment. There was no evidential basis revealed therein for joint custody. In fact, the Respondent's lawyer agent appearing that date acknowledged as much. There is no evidential basis for such a claim set out in the Respondent's affidavit in support of his motion to amend his pleadings. In fact, the Respondent deposes at paragraph 9 that, "there is no prejudice to the Applicant if I am able to amend my pleadings to include a claim for access as the Applicant has always been aware of my position". No such assertion is advanced in relation to any of the Respondent's other claims that he proposes to advance in an amended Answer.

[35] Not only is there no evidence to support a claim for joint custody, there is evidence that demonstrates that there is little to no prospect that these parties will be able to communicate and cooperate to make decisions jointly for the child. This was evident from early on in the proceedings, such as on April 24, 2018, when the parties agreed to an order for police enforcement of the residence and access terms. Since then, the evidence is that the access has completely broken down precisely because the parties are unable to agree on basic issues such as transportation for visits and place of exchange. The OCL report was discontinued because of impasse on arrangements for an observational visit.

[36] There is no demonstrable evidence whatsoever to establish even prima facie merit to the Respondent's proposed claim for joint custody.

Child Support Claims

[37] The Respondent is not now and has never been a primary or even substantial caregiver to the child. There is no legal or evidential basis whatsoever to his planned claim for basic child support.

[38] Turning now to the Respondent's claim that child support be set at an amount other than Guideline table amounts: The presumptive table amount applies except as otherwise provided by the Guidelines. Section 10 of the Guidelines deals with situations of "undue hardship". The court has the authority to deviate from the presumptive figure if the support payor can establish undue hardship as a result of inter alia, unusually high expenses in relation to exercising access to a child.

[39] Here however, the Respondent has not claimed undue hardship. At this hearing, his counsel has specifically stated that the Respondent is not pursuing an undue hardship claim.

[40] Rather, the Respondent indicated his claim was predicated solely on section 7 of the Guidelines, that is a claim for extraordinary expenses. Section 7(1) (a-f) sets out what may constitute extraordinary expenses. Contribution to transportation expenses for access is not included. Counsel was unable to provide any authority to support this novel claim. It was suggested during argument that transportation expense might fall under the rubric of "extracurricular expenses".

[41] "Extracurricular" is defined by the Canadian Oxford Dictionary as " adjective 1. (Of an activity or subject of study) not included in the normal curriculum. 2. Outside the normal routine, job expectations, etc. 3. Extra marital". On a plain and common sense interpretation, such a term could not possibly apply to visits between a parent and child.

[42] Further, in Arnold v. Washburn (2001), O.J. No. 4996, the Ontario Court of Appeal elucidated the meaning of "extracurricular" saying, ""Extracurricular" in common parlance refers to ancillary elements to the formal teaching programme".

[43] I therefore reject the suggestion that access visits constitute "extracurricular activities" within the meaning of the Guidelines.

[44] In summary then, there is no legal basis for the section 7 claim against the Applicant to contribute to the Respondent's transportation expenses. No other section 7 expense was claimed. Neither does the Respondent's sworn Financial Statement show any expenses incurred by the Respondent in relation to the child. Absent a supportable section 7 claim, the premise of the Respondent's argument to impute income to the Applicant cannot succeed.

[45] The Respondent was unable to point to any statutory authority that might permit the court to order the Applicant to "share in the cost of transportation" for access, as pleaded in the draft amended Answer.

Restraining Order Claim

[46] The Respondent does not set out any single fact to support his claim for a restraining order.

The Access Claim

[47] The real issue in this proceeding is whether the Respondent should be permitted to amend his Answer to advance a claim for access.

[48] The starting point in this analysis is that children have a right to have a relationship with both of their parents. The question of whether this little boy should have access with his father is an important one. An amendment to the Respondent's pleadings to advance a specific claim for access would further an optimal determination of this important issue.

[49] But in coming to this conclusion, I observe that the main problem for the Respondent at the time the motion for summary judgment was before the court was not his failure to include a claim for access in his pleadings. It was obvious from the transcript that the court considered it necessary to deal with the issue of access in adjudicating the motion. The real problem for the Respondent was that he had not advanced a workable and realistic proposal for his access. The Respondent had an obligation to put his best foot forward in showing there was a genuine issue for trial. He did not do so then. It is entirely clear from the transcripts that the court was prepared to make an order for access by the Respondent. The problem was the lack of a tenable proposal from the Respondent.

[50] In other words, the real problem for the Respondent in securing his objective was not his deficient pleadings. It was his lack of a practical plan. Unfortunately, the Respondent's materials on this motion do not advance him very much on that front.

Conclusion and Disposition

[51] At the end of the day, the court must deal with cases justly. What is the just way to resolve this case? It is not, in my view, to open up the case afresh on a myriad of issues on which the Respondent has no prospect of success. It is not to re-set the case to square one. It is not to allow the Respondent a "do over" on the motion for summary judgment now that he has realized that he did not put his best foot forward in the first case.

[52] What is just however, is to give the Respondent one further opportunity to come up with a plan that might allow the little boy at the heart of this case, to have a meaningful relationship with his father. What is just is to adjust the temporary child support so that this mother is not prejudiced by receiving inadequate child support until the matter can be resolved.

[53] Accordingly, temporary order to go:

1. The Respondent shall be granted leave to serve and file an amended Answer to advance additional claims relating to access and incidents of access to the child, Malikai Roman Markus Moses, born […], 2017.

2. The motion for summary judgment heard in part on January 21, 2019 shall be re-scheduled for completion.

3. Both parties shall be permitted to adduce fresh evidence in the form of updates from the date of hearing on January 21, 2019 to present.

4. The Respondent shall pay child support for the subject child based on his disclosed current income of $55,272 in the Guideline table amount of $510.00 per month, commencing July 1, 2019.

5. The issue of retroactive adjustment of support prior to today's date is expressly reserved.

6. S.D.O. to issue.

7. The matter is otherwise adjourned to June 17, 2019 at 10.00 a.m. to establish dates for continuation of hearing and a plan for exchange of materials for that hearing.

8. Counsel may speak to the issue of costs at the return date.

Dated at Brantford, Ontario

This 14th day of June 2019

The Honourable Justice K.A. Baker