Court File and Parties
Date: November 10, 2020
Court File No.: D20773/18
Ontario Court of Justice
Between:
Kamesha McIntyre
Applicant
- and -
Rhondell Garcia
Respondent
Counsel:
- Clifton Leung, for the Applicant
- Lillian Ezeogu, for the Respondent
Heard: November 9, 2020
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] On September 4, 2020, the court released its endorsement granting the applicant's (the mother's) motion to strike the respondent's (the father's) Answer/Claim. See: McIntyre v. Garcia, 2020 ONCJ 395.
[2] The court gave the father the opportunity to reinstate his Answer/Claim if, within 45 days, he provided the mother with specified financial disclosure and paid her $3,000.
[3] The court also endorsed that pursuant to subrule 1(8.4) of the Family Law Rules, that if the father failed to reinstate his Answer/Claim it would set a date to hear submissions about how, if at all, the father would be able to participate in the case.
[4] The parties were given the opportunity to make written costs submissions. The mother made submissions and the father did not respond. On September 29, 2020, the court ordered the father to pay the mother's costs of $2,400, inclusive of fees, disbursements and HST. See: McIntyre v. Garcia, 2020 ONCJ 439.
[5] The father did not comply with any of the conditions required to reinstate his Answer/Claim.
[6] The mother advised the court by Form 14B motion that the father had failed to comply with any of the required conditions and sought directions on how to proceed. The father did not file any materials in response.
[7] On October 22, 2020, the court adjourned the case until November 9, 2020 to hear submissions about how, if at all, the father would be allowed to participate in the case pursuant to subrule 1(8.4). The parties both made submissions on the return date.
Part Two – Positions of the Parties
[8] The mother asks that the father not be permitted to participate any further in the case. She wishes to proceed on an uncontested basis by filing a Form 23C affidavit.
[9] The father would like to participate in the case to the widest extent that the court will allow.
Part Three – The Motion to Strike the Father's Answer/Claim
[10] The court made the following material findings in striking the father's Answer/Claim on September 4, 2020:
a) The father was in breach of two disclosure orders.
b) The father had not paid anything towards two costs orders.
c) The father had not paid anything towards the child support orders.
d) The father failed to provide a reasonable explanation for his breaches of these orders.
e) The father had an income stream that informed the court he should have been making support payments and payments towards the costs orders.
f) The father was being openly defiant of the court orders.
g) It would be unjust and contrary to the administration of justice to permit the father to continue to defy orders, while requiring the mother to further litigate this matter.
[11] The court, in its September 4, 2020 endorsement, recognized that an Answer/Claim should only be struck in exceptional circumstances, particularly when the case involves the best interests of children. It provided the father with the opportunity to reinstate his Answer/Claim upon meeting modest conditions. The court wrote at paragraphs 51, 53 and 54:
It is time for the father to demonstrate to the court that he will respect court orders and is serious about proceeding with this case in good faith. He will be given the opportunity to do so as it always the court's preference to have both parents participate.
The court will require the father to pay the mother the sum of $3,000 by money order or certified cheque within 45 days. This will be applied to his child support arrears. The father should know that this is a very conservative amount (and probably far lower than he should be required to pay) as the court wants to be very careful about not creating an unreasonable economic barrier for him to litigate these matters. If the father is really sincere in his desire to proceed with this case, he will pay this amount.
The father shall also be required to serve on the mother and file within 45 days the following:
a) A sworn updated financial statement, with complete copies of his 2019 income tax return and notice of assessment attached.
b) Documentary proof of all income he has received in 2020, including pay stubs.
c) The name, address and telephone number of any employer he has worked for in 2020.
d) Copies of all bank account entries since January 1, 2020.
Part Four – Analysis
[12] The father paid nothing towards the $3,000 required to reinstate his Answer/Claim.
[13] The father has provided none of the disclosure ordered – either before or after the deadline to reinstate his Answer/Claim.
[14] The father did not provide a reasonable excuse for his failure to do this.
[15] The father failed to provide the court with any options for his possible participation in the trial. This could have included options (this is a non-exhaustive list) that the father be permitted:
a) To make submissions about the evidence filed.
b) Another opportunity to file a financial statement and disclosure.
c) To question the mother in a focused manner.
d) The opportunity to call evidence, either orally or in writing, on some or all of the issues.
[16] Subrule 1(8.4) of the Family Law Rules reads as follows:
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:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
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.
A date may be set for an uncontested trial of the case.
[17] In exercising its discretion in determining a party's participation in a case pursuant to subrule 1(8.4) the court has considered that the participation of both parties in family law cases is always preferred, particularly when there are issues regarding the best interests of children. Courts should exercise great caution before denying such participation.
[18] The court also considered that it should consider the primary purpose of the rules, as set out in rule 2 – to deal with cases justly.
[19] A clear message was sent to the father in the court's September 4, 2020 decision that the court wanted him to participate in the case – all it needed to see was some indication of good faith from him.
[20] However, the father chose to remain defiant of the court orders.
[21] If the father had made any reasonable effort to comply with the conditions set out in the September 4, 2020 order the court would have been very open to the participation options set out in paragraph 15 above.
[22] The merits of the case are also a factor in the court's decision. The court repeats its comments set out in paragraph 48 of its September 4, 2020 decision, where it wrote:
The parties' older child will turn 16 years old this fall. The children are well settled with the mother. The report of the Office of the Children's Lawyer supports their placement with the mother. The court heard a contested motion about the younger child's primary residence and determined that it was in his best interests to live with the mother. The mother has always facilitated generous parenting time for the father and does not propose to change this. Parenting time and decision-making should no longer be a contentious issue. In these circumstances, striking the father's amended Answer/Claim would not have the same prejudicial effect on him that it would have on most parents involved in parenting disputes.
[23] Given these facts, it would be contrary to the administration of justice to permit the father to continue to defy court orders and participate, in any manner, in this case. It would also be profoundly unfair to the mother, who has patiently complied with the rules and court direction, to incur further expense.
Part Five – Conclusion
[24] An order shall go on the following terms:
a) The father will not be entitled to participate any further in this case.
b) The mother should submit her Form 23C affidavit for an uncontested trial as soon as possible.
c) A return date will be set to speak to the matter on January 12, 2021 at 10:00 a.m. by teleconference. This date will only be required if the court requires further oral evidence from the mother.
Released: November 10, 2020
Justice S.B. Sherr