Court File and Parties

Ontario Court of Justice

Date: November 13, 2020

Court File No.: FO-14-059-0001

Between:

Cara Rankin Applicant

— AND —

Jeremy Hill Respondent

Before: Justice B.C. Oldham

Heard on: November 2, 2020

Reasons for Judgment released on: November 13, 2020

Counsel:

• Hilary Goodman, counsel for the applicant
• Jeremy Hill, on his own behalf

Judgment

OLDHAM J.:

Introduction

[1] The Applicant, mother brought a motion to strike the Respondent, father's pleadings. The proceeding before the court is a Motion to Change ("MTC") which was commenced by the mother on June 27, 2019. The MTC seeks to terminate the access provision set out in the Order of Justice Boucher dated February 3, 2016 (the "2016 Final Order"). The mother requests an order requiring the father to engage in reunification therapy with both children before any access recommences. The father filed a Financial Statement, a Response to Motion to Change, and an Affidavit in Support of Claim for Custody and Access.

[2] The Response to Motion to Change seeks a change in child support, regular access and a change in custody, but also notes agreement with paragraph 10 of the MTC which requests the following relief:

"That the respondent participate in reunification counselling at his sole cost."

[3] The motion to strike the father's pleadings was served on the father on October 6, 2020 and the date for hearing was scheduled on October 13, 2020. Both the mother and the father were present on October 13, 2020. The parties were provided with a timeline for filing materials in advance of the scheduled hearing date of November 2, 2020 at 2:00 pm. The father filed his responding materials in accordance with the filing deadlines set out in the October 13, 2020 Order.

[4] In advance of the hearing, the court emailed the father to confirm a change in the virtual zoom link. This was done on October 30, 2020. The father was served with the confirmation from the mother on October 28, 2020. At the commencement of proceedings when the father did not appear on zoom, the court opened the teleconference line which was set out in the October 13, 2020 Order to ensure that the father was not waiting on the conference line. The matter was then stood down for 30 minutes to provide the father with an opportunity to respond to an email sent by the court staff and text that was sent by the mother reminding him of the proceedings.

[5] The matter resumed at 2:30 p.m. The father did not respond to the email, text or page at the courthouse and had not attended in person at the court through its screening process.

[6] The motion proceeded in the father's absence.

Substantive Issues

[7] This motion is brought under Rule 1(8) of the Family Law Rules ("FLR") which provides as follows:

(8) – FAILURE TO OBEY ORDER – 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.

(8.1) – FAILURE TO FOLLOW RULES - 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).

(8.4) - CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS – 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.

[8] Counsel for the mother provided the court with three decisions regarding the considerations under Rule 1(8) of the FLR when assessing whether to strike a party's pleadings. Applying these cases, counsel noted the following comments of Justice Quinn in Gordon v. Starr (2007), 42 R.F.L. (6th) 355 at para 23:

[23] ….Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.

[9] Noting that one remedy under Rule 1(8) for non-compliance with orders is to strike the non-compliant party's pleadings, counsel directed the court to the three-step test. Specifically, the court is to follow the following three-step process to determine whether it should exercise its discretion to strike a party's pleadings:

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?

(See: Norris v. Norris, 2019 ONSC 2795 at para 20)

[10] It is clear from the application of this test that courts should exercise its discretion sparingly and only in exceptional circumstances where there is no other remedy. "The adversarial system through which cross-examination and argument functions to safeguard against injustice requires that a proceeding should be maintained wherever possible. Accordingly, the objective of a sanction ought not be the elimination of the adversary, but rather one that will persuade the adversary to comply with court orders." (See: Purcaru v. Purcaru, 2010 ONCA 92 at para 49 (Ont. C.A.)).

[11] In family law proceedings, proceedings should only be struck in egregious and exceptional circumstances which includes wilful non-compliance with a court order to provide financial disclosure. The Court of Appeal in Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374 at para. 13 affirmed Justice Myers' ruling and made the following comments:

After continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11. In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

[12] Where children's interests are involved, the court should avoid that sanction or use utmost caution in striking pleadings because the trial court needs participation of both parties and information that each can provide about the best interests. (See: King v. Mongrain, 2009 ONCA 486, [2009] O.J. 2466 (C.A.).)

[13] In this particular case, counsel for the mother laid out the following evidence to support each step in the three-step analysis.

The Triggering Event

[14] Counsel claimed that there were several triggering events. The first occurred in June 2019 when the father stopped paying child support. The 2016 Final Order requires the father to pay child support to the mother in the amount of $700.00 per month commencing February 1, 2016 and on the first day of each month thereafter. The mother's affidavit indicates that the father stopped paying support on June 1, 2019 and is now $11,900 in arrears. No payments have been made towards ongoing or arrears in child support since June 2019.

[15] Secondly, this court's order of February 18, 2020 sets out specific disclosure which was to be provided by the father by March 6, 2020. The disclosure includes the following:

(1) Financial disclosure for 2016, 2017 and 2018 as required by paragraph 16 of the 2016 Final Order which includes "includes income tax returns, including schedules and attachments and notice of assessment each year by June 1, along with proof of any section 7 Guideline expenses."

(2) Notices of assessment for 2016, 2017 and 2018;

(3) a copy of the father's record of employment or a letter from his employer confirming his retirement date and earnings to date or any severance package;

(4) a copy of his 2019 T4 as soon as it becomes available; and

(5) proof of any other earnings, including any disability pay as soon as that became available.

[16] As of the date of this motion, none of the financial information has been provided notwithstanding a further endorsement dated June 10, 2020 from this court confirming non-compliance and adjourning the matter to July 21, 2020 to allow the father time to comply.

[17] On February 18, 2020, the father was ordered to pay $1,000 in costs to the mother by March 24, 2020. This cost order has never been paid.

[18] On September 10, 2019, the parties entered into Minutes of Settlement confirming their agreement that the father was to "attend reunification counselling with JHR, born […], 2011 and FMR, born […], 2013, prior to any parenting time." While the father did meet with a reunification counsellor, he has since failed or refused to follow the recommendations of the counsellor and as a result the counsellor has ended her engagement and the reunification portion of the counselling has never commenced.

[19] Each of these are acts of wilful non-compliance by the father. He has been cautioned and has had ample time to comply and yet has failed to take any steps. Even the response to this motion to strike fails to address the claims of non-compliance and does not provide any indication that the father has taken steps or is in the process of remedying the non-compliance.

[20] The father attached a letter from his psychotherapist dated February 14, 2020 stating that "I believe that Jeremy and his children's best interest should be served by allowing him access". This recommendation appears to be based upon discussions with community members who say that he is a good person and that "the court has believed the lies of his ex and his mother and has kept his children from him." There is no reference to the recommendations of the reunification counsellor. The psychotherapist has not had the opportunity to meet or observe the father with his children.

Is it Appropriate to Strike Pleadings in the Circumstances of this Case?

[21] Counsel for the mother submits that the complete failure to disclosure anything notwithstanding the time that has passed and the various orders confirming the outstanding requests suggests that the remedy of striking the father's pleadings is the only appropriate order at this stage. Counsel notes that there have been eight court appearances with no progress made with respect to financial disclosure. It would appear that there is little hope that a further request or order will have any impact on the father. This, notwithstanding the fact that it is the father's request to vary the ongoing child support. The issues and information requested is not complicated and accordingly, financial disclosure is a basic obligation in order to advance his request in the Response to Motion to Change.

[22] Justice Spence in Ferguson v. Charlton, 2008 ONCJ 1, at para 64 said the following regarding the second step:

Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14 (23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court's decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

[23] With respect to the issues around access, the father consented to an order dated September 10, 2019 which required that he engage in reunification counseling. There were delays in respect of the commencement of this engagement and in fact it was not until December 19, 2019 that a counsellor was agreed upon and retained. The father confirmed by way of his Response to Motion to Change (which was signed 15 days after he signed the Minutes of Settlement) that he still agreed that reunification counseling was necessary and in fact agreed that he would bear the full cost. To date, it is my understanding that the parties have shared in the cost of reunification counselling.

[24] The counsellor confirmed that as of April 20, 2020, the father was not prepared to accept the reunification counselling recommendations. The father's responding materials confirm his position leading up to this motion which is that reunification counselling is not necessary and that he should be able to commence assess in accordance with the 2016 Final Order immediately. The father's Affidavit in response to this motion to strike does little to provide any insight into what has changed, other than his attitude and frustration in respect of the passage of time.

[25] The parties were not in a long term relationship. The mother's affidavit indicates that they cohabited for six months. The children were two years of age (F.) and five years of age (J.) at the time of the 2016 Final Order. An incident occurred on the first access visit following the commencement of the 2016 Final Order. The father then relocated to Alberta and has not had any face to face access with the children since February 2016. He has only had one telephone call with J. throughout that entire time frame.

[26] The father alleges alienation and seeks joint custody of the children notwithstanding the fact that he has not had any relationship with the children for over four years and only when they were very young.

[27] Counsel for the mother encourages the court to consider the mother's willingness to work with the father through counselling, mediation and the engagement of counsel. Rather than breach the access order, she retained counsel in June 2019 as soon as the father sought access in an effort to seek an orderly reunification and recommencement of access.

[28] While courts must be particularly cautious in striking pleadings where the children's interests are involved, the lack of engagement by the father impedes the court's ability to obtain full information and participation by both parties.

[29] As noted in Varcoe v. Varcoe, 2014 ONSC 328 at para 6, it would be superfluous to order that a party comply with an existing order. To order compliance does not add to or take away from the initial order. If there has been a breach, the appropriate step is to seek a remedy under subrule 1(8).

Other Remedies in Lieu of Striking Pleadings that Might Suffice

[30] The primary objective of the Family Law Act is to decide cases justly as set out in Rule 2 of the Family Law Rules.

[31] Rule 2(3) provides that dealing with cases justly includes:

(a) Ensuring that the proper 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 cases while taking into account the need to give resources to other cases.

[32] This is a MTC. Issues of custody, access and support were dealt with by way of three day trial which resulted in a consent order on terms set out in the 2016 Final Order. While access is an issue which must be considered in light of the best interests of the children, it would be, as noted by Justice Sherr in McIntyre v. Garcia, 2020 ONCJ 395 at para 49, "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".

[33] As noted by the mother's counsel, this is not a case where the father cannot re-engage the court at a time when he is ready to participate. There is little benefit, however, to continue with attendances without any forward mobility. Cost orders and adjournments have had no impact. The difficulty with this approach is that it does not put an end to the litigation. The father claims he has retired and accordingly, his income has changed. He has only filed two statements from the Canadian Armed Forced Pension; one from August 6, 2019 and the second dated August 28, 2019. While the onus is on him to establish the change in circumstances, there appears to be some merit to his claim.

[34] The father wishes to have access to his children who he has not seen for several years. The communication between the parties is not good, but the mother is prepared to work with the father through the reunification counsellor. The best interests of the children in these circumstances would be better advanced with the full participation of both parties in counselling and the court proceedings.

[35] As noted above, it is simply not fair to force the mother to continue to litigate while the father refuses to comply with court orders. Consequently, this is a case where it is appropriate to strike the father's pleadings, but the court must consider all options. In McIntyre, supra, Justice Sherr relies on Costabile v. Costabile, to provide a pathway back should the father wish to engage.

[36] In my view, a pathway back is an appropriate last resort before scheduling the uncontested hearing. If the father is prepared to bring himself into compliance with the orders, he should be permitted to re-engage. Given my comments about the potential merit to the father's request to vary child support in light of his retirement and to ensure that the conditions imposed do not create an economic barrier to litigation, the condition to pay arrears in child support should be adjusted to a partial payment of 50% of the outstanding arrears.

[37] The father has known since September 15, 2020 that the mother was going to bring this motion to strike. The mother was forced by the court to serve and file her motion and return on October 13, 2020 before she could even schedule a hearing of this motion. The disclosure and cost orders are eight months overdue. The child support has been outstanding for 17 months. There has been no engagement in reunification counselling for at least seven months. Given the amount of time that has passed, this pathway to re-engage should not be lengthy. Given the time of year, this matter should be back in court in early January 2021. The father will have until December 31, 2020 to bring himself into compliance.

[38] Specific conditions with respect to the non-compliance with the cost order and financial disclosure obligations is relatively straight forward. The reunification counselling is more challenging in that while there is an order that the father will engage in reunification counselling, the specifics of what is required to comply with that condition is not squarely before the court in this motion. The only information is before the court, is an email from Family TLC dated April 20, 2020 confirming that "From what we understand Jeremy you are not in agreement with our recommendations, the children are, and Cara you support our recommendations. We require everyone's agreement to proceed, so at this time we will not be moving forward to the next stage of Jeremy meeting with the children".

[39] If the father had a specific issue with respect to the recommendations, he has never brought that before the court. For example, if the father believed that reunification counselling was not productive, he should have brought a motion to vary the September 10, 2019 Order and proposed a new plan for reunification. Instead he simply refused to continue and demanded immediate access. At this stage, a counsellor has met with the family, made recommendations and prepared a plan for the children to meet with their father. Re-engagement in these proceedings, at a minimum, will require that the father obtain a letter from Family TLC confirming whether they are willing to continue working with the family and the terms of engagement that is required to move forward. The father must also commit to continue with the reunification counselling as recommended or prepare and serve a motion on the mother seeking to vary the reunification term in the September 10, 2019 order and provide the court with an alternative proposal for reunification.

[40] If the father has not complied with the conditions and restored his Response to MTC, the court will schedule an uncontested trial, pursuant to subrule 1(8.4).

Order

[41] An order shall go on the following terms:

1. The Respondent's Response to Motion to Change, Affidavit in Support of Custody and Access and Financial Statement is struck pursuant to subrule 1(8).

2. The Respondent, father, may move to restore his Response to Motion to Change by Form 14B motion on notice to the Applicant, Mother through her counsel, if he does the following by December 31, 2020:

(a) He pays the outstanding cost order of $1,000 by certified cheque or money order.

(b) He pays $5,450, being 50% of the outstanding child support, owing by certified cheque or money order.

(c) He provides a copy of the following financial disclosure:

(i) a sworn updated Financial Statement with complete copies of his 2019 income tax return including all schedules and the 2019 notice of assessment;

(ii) a copy of all of the financial disclosure required by the February 18, 2020 Order.

(iii) documentary evidence of any income received in 2020.

(d) The father shall obtain a letter from Family TLC confirming whether they are prepared to continue working with the parties and the terms of engagement that are required to commence counselling.

(e) In addition to the letter set out in paragraph (d) above, if the father is not prepared to follow the Family TLC's recommendations, or engage another reunification counsellor if the Family TLC is no longer willing or able to provide services, the father must serve a motion on the mother seeking to vary the reunification term in the September 10, 2019 order with a supporting affidavit detailing the basis for the variation and an alternative proposal for reunification.

[25] If the mother seeks costs in respect of this motion, she shall serve and file her written cost submission by November 25, 2020. The cost submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The Respondent Father will have until December 3, 2020 to respond.

[26] This matter is scheduled to return on November 17, 2020 at 10:30 am by zoom. The connection details were provided in the court's endorsement of November 2, 2020. The purpose of this attendance will be to confirm a return date in January 2021 to schedule next steps.

Released: November 13, 2020

Signed: Justice B.C. Oldham