ONTARIO COURT OF JUSTICE DATE: 2024 06 27 COURT FILE No.: Sudbury D-571-13 ext 3

B E T W E E N :

Robert Hall Applicant

— AND —

Lisa Allen Respondent

Before: Justice G. Jenner Heard on: March 20th, 2024 Reasons for Judgment released on: June 27th, 2024

Counsel: Samantha Prescott, for the applicant Jerome Gardiner, for the respondent

JENNER J.:

Reasons for Judgment on Rule 1 and Summary Judgment Motion

Part One: Introduction and Background

[1] The applicant father, Robert Hall, and the respondent mother, Lisa Allen, were married in 2006 and separated in 2013. There are two children of the marriage, and a third from the mother’s previous relationship. The parties executed a separation agreement the year they separated.

[2] Three motions to change followed; the first and second in 2013 and 2018 respectively. The father’s motion to change in 2013 lowered and fixed his spousal support obligation.

[3] In the second motion to change, the parties litigated the issue of special and extraordinary expenses (s. 7 expenses) for the period from January 1, 2018 until December 31, 2019 and any arrears for that period. The trial took place before Justice Mendes on October 1, 2019 and resulted in a final order dated December 17, 2019 that included specific terms dealing with ongoing financial disclosure. The parties also resolved several issues on consent, which were made the subject of the order of Justice Mendes dated October 1, 2019.

[4] Among the issues resolved on consent was that of spousal support. The father was to pay no spousal support for the period from January 1, 2019 to May 1, 2020, subject to both parties providing their 2019 and 2020 notices of assessment and income tax returns.

[5] The mother then brought this current third motion to change on July 13, 2021. She seeks to vary spousal support, change the approach to s. 7 expenses, and to recover child support for one of the children. The father counters that the mother has never complied with the ongoing disclosure terms in Justice Mendes' order dated December 17, 2019, nor with similar conditions of subsequent court orders.

[6] The father therefore brought the present motion seeking to strike the mother’s pleadings in her current motion to change, or in the alternative to have certain issues decided by summary judgment. The issues for summary judgment were limited to the s. 7 expenses and spousal support. On consent, the parties adjourned the remaining issue of child support to future determination, pending further resolution discussions.

[7] The motion was argued before me on March 20, 2024. I reserved my decision.

Part Two: Issues

[8] The present motion raises the following issues:

(1) Should the mother’s pleadings in this motion to change be struck under r. 1(8) of the Family Law Rules; and

(2) If not, should summary judgment be granted on the issues of s. 7 expenses and spousal support?

Part Three: The application of Rule 1(8)

3.1 The general framework

[9] Rule 1(8) broadly empowers a court to respond to a party's failure to obey an order and sets out a non-exhaustive list of tools. It reads as follows:

Failure to obey order

(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.

[10] In a motion brought under rule 1(8), the court follows the three-step process established in Ferguson v. Charlton, 2008 ONCJ 1, at para. 64:

• First, the court must ask whether there is a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].

• 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)…. 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.

• Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy…

[11] Implicit in this analysis is the principle that the court’s response to the breach of a court order should be proportionate to the non-compliant conduct: Mills v. Hachey, 2018 ONCJ 779, at para. 15. In Price v. Putman, 2018 ONCJ 86, at para. 44, Justice Starr added that a sanction under rule 1(8) “should be restorative to the victim of the breach and punitive to the noncompliant party.”

[12] Rule 1(8) must also be read in conjunction with r. 2(2) which provides that the primary objective of the rules is to deal with cases justly. Per subrule (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.

[13] Further guidance in the application of r. 1(8) to alleged disclosure-based non-compliance is found in the Court of Appeal’s decision in Mullin v. Sherlock, 2018 ONCA 1063, at paras. 44-46:

First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

• the extensiveness of existing disclosure;

• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

• any other relevant factors.

Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

3.2 Has there been non-compliance with a court order?

[14] The father argues that the triggering event is non-compliance with the court’s orders regarding disclosure of material with respect to s. 7 expenses. The alleged non-compliance began prior to the present motion to change and has continued within the motion to change.

[15] Specifically, the father emphasizes that pursuant to the separation agreement, the mother was to provide, by April 1 of each year, “reasonable evidence, in writing, of the amounts she incurred for the Children’s special or extraordinary expenses… for the previous calendar year…”. A further clause within the separation agreement provided that when a party requested disclosure on the current special expenses, such disclosure would be provided within 30 days of the request.

[16] Following the first motion to change in 2013 Justice Keast ordered that “if the [mother] seeks a contribution for s. 7 post-secondary expenses, then she shall provide proof of the withdrawals and contribution to the RRSP since separation in order to determine each party’s possible obligation...”

[17] On December 17, 2019, following a trial on the issue of s. 7 expenses, Justice Mendes ordered that “by Jan 31st each year commencing in 2020 the [mother] …shall provide to the [father]…an annual account of the children’s s. 7 expenses which shall include a chart of the same for each child and the corresponding receipts for each item paid for the child.”

[18] Justice Mendes said the following in her decision:

The mother has provided the receipts which she has had available to her as she did not keep good records regarding the s. 7 expenses given that the father has not requested an accounting of the expenses historically.

The [mother] has a positive obligation to provide receipts for expenses she is seeking reimbursement for, regardless of any request made by the [father]. The need for s. 7 accounting existed since separation in 2013 and the general nature and quantum of the ongoing expenses for the children, when all three were involved in extra-curricular activities, has been long-known to the respondent.

[19] The father’s evidence is that throughout 2020 he requested s. 7 receipts and income disclosure from the mother for 2019 via counsel. This mother had an obligation to provide that material by January 31, 2020, but never did. Counsel for the mother advised that it was not provided because the mother misunderstood Justice Mendes’ decision, but assured the father that the mother now understood her obligation.

[20] The father acknowledges that the mother then began to provide some disclosure. He complains, however, that corresponding receipts for each expense were not provided, that some receipts provided were duplicates or pertained to previously litigated and thus moot periods of time, and that certain receipts were forgeries.

[21] The father continued to press for full compliance with Justice Mendes’ order. On January 26, 2021, the mother sent the father an email attaching receipts for s. 7 expenses but in a password protected form. In the body of the email, which is attached as an exhibit to the affidavit (tab 10(e)), she said the following:

…the order which you entered into October 24, 2019 states you will pay spousal and child support based on your Canadian Notice of Assessment. I entered this agreement in good faith, you have not acted in good faith, when you make the correct payment of arrears, which as of December 31, 2020 was in arrear in excess of $22,218, I will send you the password for the attached documents. You entered into this agreement and have willfully refused to act in good faith. The amount of receipts is in excess of $16,000 and the description and breakdown are attached and not protected…

[22] The mother commenced this motion to change in 2021 and the non-disclosure continued. The father points out that the mother’s financial statement with respect to the motion to change lists “medical and dental…to be determined” where the form requests an outline of s. 7 expenses, and that the affidavit filed in support of the motion to change charts expenses but does not provide receipts.

[23] On April 1, 2022, Justice Kim endorsed that “[t]he withholding of relevant financial information must first be resolved in order to pave the way for a fair and reasonable resolution of the child and spousal support disputes at the center of this proceeding.” He ordered the disclosure of a number of items, including “all receipts in support of the mother’s s. 7 expenses claim.”

[24] When the complete set of receipts was still outstanding at a trial management conference on June 30, 2022, Justice Lefebvre ordered that the mother ““shall serve and file two books of documents concerning the s. 7 expenses for the children… by August 5, 2022. The first book shall be entitled ‘s. 7 expenses -Health benefits’ and the second book shall be entitled ‘general s. 7 expenses’.” The order further provided that the Book of Documents shall include a chart with reference to the page number where the corresponding receipt or document can be found concerning the chart.

[25] The mother did not serve the books of documents as ordered. On August 9, 2022, a conference continuation was held. The mother was ordered to pay costs in the amount of $500.00 for non-compliance with the disclosure order of June 30, 2022. She has since satisfied this costs award.

[26] In September 2022, the father’s counsel wrote to the mother’s counsel requesting the outstanding disclosure. In January 2023, the mother did provide a list of expenses. There were not receipts for every expense, and the material was not organized in the fashion set out by the previous court orders.

[27] In March 2023, the matter was set for trial. The trial did not proceed. There was a consent order made by Justice Peterson on March 31, 2023 resolving a number of items. But issues of spousal support, s. 7 expenses, and RESP withdrawals remained. The consent order also required that the mother disclose a number of items, including the Books of Documents ordered to be produced by Justice Lefebvre on June 30, 2022. That disclosure was to be produced by May 24, 2023.

[28] On March 29, 2023, the mother swore an affidavit attaching “s. 7 expenses for 2020 and 2021.” They are organized as exhibits attaching receipts. The affidavits were served on March 30, 2023 but were not filed until December 11, 2023. On December 8, 2023, the mother served a Book of Documents for General s. 7 expenses for 2020-2023, and a Book of Documents for Section 7 Health Expenses for 2020-2023. These documents appear to be organized in compliance with the court’s previous orders as to form.

[29] In sum, the father alleges non-compliance with the order of Justice Mendes dated December 17, 2019, the order of Justice Lefebvre dated June 30, 2022, and the order of Justice Peterson dated March 31, 2023.

[30] The mother’s submission on the question of her compliance with court orders is that she has provided considerable disclosure, which is now complete. The issue has been the manner in which the receipts have been organized, which is the cause of the delay.

[31] The court finds that the mother has not complied with the series of court orders in relation to disclosure of expenses and receipts relating to s. 7 expenses. The non-compliance has extended over a protracted period, approximately 4 years. While partial disclosure has been provided from time to time, complete disclosure was required. Where the mother was unable to locate and furnish receipts, it was open to her to adjust her position accordingly. It was not open to her to continue to assert claims she could not support with the necessary documentation.

[32] The court rejects the claim that the mother substantially complied with the orders, but merely organized her documents in an alternate manner. The history of this litigation demonstrates that the court went to great lengths to attempt to eliminate any confusion surrounding these documents, and to avoid any further delays. The form cannot be separated from the substance. Her failure to organize the receipts in the form specifically directed by the court was a failure to comply with the court’s orders.

3.3 Should the court impose sanction, and if so, what is the appropriate remedy?

[33] The father asks the court to respond to the mother’s non-compliance by striking the mother’s pleadings. Pursuant to r. 1(8.4) of the Family Law Rules, striking the mother’s pleadings would have the effect of disentitling her to notice of any further steps in the case and preventing her from participating in any way. The matter would be permitted to proceed to an uncontested trial.

[34] The striking of pleadings can be an appropriate response to non-compliance with disclosure orders, and a pattern of willful non-compliance risks a litigant’s standing: Manchanda v. Tethi, 2016 ONCA 909, at para. 13. Striking pleadings is, however, among the most consequential remedies available to a court under the rules. It can serve to frustrate the benefits of our adversarial system and should only be granted when other remedies would not suffice: Purcaru v. Purcaru, 2010 ONCA 92, at paras. 47-49.

[35] I conclude that the striking of pleadings is not an appropriate remedy in this case given the manner in which the parties join issue and given the availability of other remedies to address the non-compliance.

[36] While Justice Mendes’ order of December 17, 2019 included a provision for disclosing s. 7 expenses, the order does not fix the father’s share of extracurricular expenses based on the amounts disclosed. Justice Mendes opted rather to fix those costs at $400 per month per child. Her detailed reasoning is outlined in her reasons for judgment but was focused on the impracticality of these parties communicating on an ongoing basis on extracurricular decisions. I do not read the disclosure clause as intending to directly impact the amount paid by the father to the mother. Rather it stood alone to ensure that the father is informed about what extracurriculars are being paid for, and perhaps to support a motion to change in future if the expenses incurred strayed significantly from the amounts being paid. There is nothing in Justice Mendes’ order to create an expectation that the amount paid would be automatically adjusted annually to account for any level of difference. Indeed, it would be unrealistic and contrary to the spirit of Justice Mendes’ order to expect the incurred expenses to total exactly $400 per month per child.

[37] Moreover, in this motion to change it is not the mother who is asking this court to increase the fixed s. 7 expense payments based on actual expenses incurred. It is the father who is asking this court to decrease those payments, including retroactively. He argues he has been overpaying and it is in his Response to the Motion to Change that he asks the court to change the order of Justice Mendes dated December 17, 2019 with respect to s. 7 expense payments. Specifically, he asks the court to reduce the $400 monthly payments to $100 for the years 2018 and 2019, and to fix the contributions at $0 for 2020. He further asks the court to order that commencing in 2021, the amounts payable shall be determined only after the mother provides all receipts by January 31, 2024 of the following year.

[38] In this context, if the court were to strike the mother’s pleadings, then at an uncontested trial on the issue of s. 7 expenses the father would effectively have carte blanche to challenge the legitimacy and quantum of the incurred expenses. He would be advancing an argument to reduce his contributions retroactively to zero for some timeframes, without any participation from the mother. The s. 7 expenses are not for her benefit. They are for the children’s benefit. I am concerned that striking the mother’s pleadings would prejudice the court’s ability to deal with this case justly and would constrain the court’s ability to fairly assess what change, if any, should be made to the existing order insofar as s. 7 expenses are concerned.

[39] That said, this is not an exceptional case wherein the non-compliance should go unsanctioned. The mother’s non-compliance was protracted and has already caused this case to consume a disproportionate amount of the court’s resources. It has also burdened the father with additional legal expenses.

[40] In my view, the most appropriate response is an order for costs. The disclosure was delayed but was ultimately provided. There is no need at this time for the court’s order to motivate future compliance. In such circumstances, a costs order is preferable to the striking of pleadings: see Vogl v. Vogl, 2007 ONCA 303, at para. 3. Any remedy should also be restorative to the father and punitive to the mother. A costs order is most capable of achieving those goals.

[41] The court has not received submissions as to quantum of costs related to pursuit of full disclosure in this matter. As such, the quantum must be the subject of further submissions. Given the many opportunities the mother has had to comply with her disclosure obligations in a timelier fashion, and the delay that her actions occasioned, the costs will be assessed on a full-indemnity basis.

[42] In addition to an order for costs, the court will also order that the mother shall not be permitted to advance a claim that she incurred any s. 7 expense in 2023 or prior that is not included in the presently filed Books of Documents. This is to protect the father against the possibility that the current set of receipts is incomplete.

Part Four: Summary Judgment

4.1 General legal framework

[43] Summary judgment motions are governed by r. 16 of the Family Law Rules and the Supreme Court of Canada’s guidance in Hryniak v. Mauldin, 2014 SCC 7.

[44] Pursuant to r. 16 (4), the party moving for summary judgment “shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.” Pursuant to r. 16 (4.1) the responding party to the motion “may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.” Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. The parties are expected to put their best foot forward, and the court should not assume that the evidence will be amplified or improved at trial: Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26.

[45] Despite r. 16(4.1), the burden of proof rests on the party moving for summary judgment. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial: see Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80; L.M. v. Children’s Aid Society of the Region of Peel, 2019 ONCA 841, at para. 49.

[46] The applicable test is set out in Hryniak, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[47] The court added, at para. 50, that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”

[48] Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a trial, the court may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice for such powers to be exercised only at trial. Rule 16(6.2) empowers the court to order a mini-trial and hear oral evidence in order to exercise the powers under subrule (6.1). Pursuant to r. 16(9), if the court does not make a final order, the court may give directions and conditions for a focused hearing.

While a mini-trial may be an attractive option in order to avoid the trappings of a full trial, the court should not assume that process will be more efficient. A mini-trial may result in a finding that there persists a genuine issue for trial, necessitating a further hearing, additional delay in the disposition of the case, and further burdens on the system: Catholic Children's Aid Society of Toronto v. A.M., 2016 ONCJ 700, at paras. 94-95.

4.2 Application with respect to spousal support

[49] The father argues that the relief sought by the mother, “spousal support based on the actual 2019 and 2020 income of the parties until May 1, 2020 and the midpoint of the SSAGs,” is already granted by the final order of Justice Mendes dated December 17, 2019. The father argues that the proper course of action would have been a motion on consent to seek the change once the income disclosures had been made, and if the SSAG midpoint no longer indicates $0 payable. The father submits there is no genuine issue for trial, because if the mother provides accurate notices of assessment, then spousal support will be adjusted on consent.

[50] The mother, in her factum dated March 29, 2023, indicated that she was still awaiting her notices of reassessment in order to address the issues of her income. It is unclear whether that has since been made available.

[51] In any event, it is not clear to the court that—whatever the state of disclosure with respect to the mother’s 2019 and 2020 income—the parties will agree as to the accuracy of the documentation. The father explains, at para. 37 of his factum, his various concerns with the mother’s income tax returns, including that she has not reported RESP withdrawals accurately, has not reported spousal support income accurately, and has misreported her marital status. It appears that the parties agree that the spousal support ought to be adjusted retroactively to account for the parties’ actual incomes. But the court cannot conclude that the matter will simply resolve itself on a consent basis given the very real possibility that the parties will continue to disagree about the mother’s actual income in the relevant years. The court cannot order summary judgment on the basis that the issue will very probably resolve.

[52] Additionally, whether that disagreement over spousal support is the proper subject of a motion to enforce the order of Justice Mendes or motion to change the order of Justice Mendes is academic at this point. The parties have not resolved the issue of the mother’s income and require a forum to determine it. No party is suggesting that the mother would need to meet a ‘material change in circumstances’ standard, and the difference in form of the motion is immaterial.

[53] I am not persuaded that this is an appropriate issue for summary judgment. On a summary judgment motion, the parties both have evidentiary obligations under the rules, but the moving party also has a persuasive burden. As this court observed in Jewish Family and Child Service v. S.K., 2015 ONCJ 246, at para. 11:

A summary judgement motion is not a paper trial. It is the obligation of all parties to analyze the facts and present the facts in an organized, succinct and compelling way to persuade the presiding judge that the facts are so persuasive, and the law applied to the undisputed facts is so clear that the matter should proceed by summary judgment.

[54] Respectfully, while the record may contain important raw data with respect to the mother’s income, neither party has explained how the court should reconcile the issues of accuracy in dispute. Indeed, despite this being the father’s motion for summary judgment on this issue, the court is in the dark about what value the father wishes the court to ascribe the parties’ incomes in 2019 and 2020. The father has not met his onus to present the facts and legal issues with sufficient clarity for the matter to proceed expeditiously and justly by way of summary judgment.

[55] This leaves the court with the options of ordering a mini-trial (r. 16(6.1), a focused hearing (r. 16(9)), or permitting the matter to move to trial in the usual course. On this issue, I see very little difference between these options. The question has always been narrow: what were the parties incomes in 2019 and 2020, such that the SSAG midpoint might depart from $0? I see no value to ordering a mini-trial or imposing conditions on the hearing of this issue beyond standard determinations that can and should be made a trial management conference. The motion for summary judgment will be dismissed with respect to this issue.

4.3 Application to the s. 7 expenses

[56] With respect to s. 7 expenses, there are two questions at issue between the parties. First, in her motion to change, the mother seeks to change the status quo with respect to calculating payments for medical and dental expenses. She wishes to have the father pay his proportionate share of medical and dental expenses to her, after which each party may claim their out-of-pocket expenses to their respective insurers.

[57] The second issue is raised by the father. As explained above, he wishes to retroactively reduce his obligations for s. 7 expenses due to the mother’s failure to provide annual accounting of the actual expenses incurred.

[58] With respect to the first issue, I agree with the father that there is no genuine issue requiring a trial. Leaving aside the unorthodoxy of the suggested approach to payment, the father correctly points out that the mother has advanced no evidence of a material change in circumstances which could justify the departure. The mother is obligated to put her best foot forward on this motion for summary judgment. The court is not entitled to assume that a sufficient basis to make such a change will arise on the evidence at trial. This issue can be cleanly severed from the other issues, and the claim for this particular relief will be summarily dismissed at this juncture.

[59] The second issue warrants different treatment. The parties disagree about the total s. 7 expenses incurred over several years. That disagreement includes allegations of potential fraud on the part of the mother. There are issues of credibility to be determined. Credibility issues are not automatically genuine issues for trial: Bedard v. Huard; CAS of S.D.G v. A.G. and K.T, 2021 ONSC 4172, at para. 41. If, however, credibility goes to a material issue, and cannot be assessed on a written record, it tends to indicate oral evidence in some form is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55.

[60] I am not prepared to make credibility findings concerning potentially fraudulent expense receipts on the written record before me. Oral evidence is more appropriate to the resolution of those issues. I am not prepared to grant a final order on this issue on the written record before me.

[61] Should the requisite oral evidence be heard in the context of a mini-trial, focused hearing, or trial? Again, I am not persuaded there would be much difference for this issue, which is also quite narrow. The s. 7 expenses issue requires the court to resolve the following sub-issues:

(1) What legitimate expenses were incurred?

(2) How do the expense totals compare to the lump sum payments made?

(3) Does the result of that comparison constitute a material change in circumstance and ought the court to revisit the payment program on that basis?

[62] Only the first of these issues calls for evidence. The remaining two are matters of mathematics and legal submissions. A mini-trial or focused hearing to assess the legitimacy of the expenses would in my view subsume the entire evidence portion of the trial. Nor is there a need for restrictions or conditions on the trial beyond those that will be imposed through the standard trial management process. The past disclosure-based delays in this case are highly regrettable and will be redressed by way of costs order. At this juncture, however, the most straightforward and cost-effective manner to achieve finality is simply to allow this narrow issue to continue to trial.

Part Five: Conclusion

[63] The court orders as follows:

(a) The mother is in breach of the order of Justice Mendes dated December 17, 2019, the order of Justice Lefebvre dated June 30, 2022, and the order of Justice Peterson dated March 31, 2023, in failing to disclose, in the appropriate form and in according to the timelines imposed, s. 7 expenses incurred on behalf of the children.

(b) In remedy for the mother’s non-compliance, the mother will be ordered to pay costs to the father in relation to his legal fees and disbursements reasonably incurred in pursuit of enforcing the mother’s disclosure obligations. The costs will be assessed on a full indemnity basis.

(c) The father shall serve and file his bill of costs within 30 days of the release of this decision. It may be accompanied by written submissions not exceeding two pages, which may address only the issue of the reasonableness of the costs incurred, and their relation to enforcing the mother’s disclosure obligations with respect to s. 7 expenses. The mother will have 15 days following the receipt of the father’s submission to file any responding submissions, which shall be governed by the same limitations as to form and content. The submissions of both parties shall be clearly marked ‘Costs Submissions re: Rule 1 Remedy’.

(d) In further remedy of the mother’s non-compliance, she shall not be permitted to advance a claim that she incurred any s. 7 expense in 2023 or prior that is not included in the presently filed Books of Documents.

(e) The mother’s motion to change is partially dismissed. The request for relief at para. 11(c) of her motion to change, concerning the manner of payment for medical and dental expenses, is dismissed.

(f) With respect to the remaining issues, the father’s motion for summary judgment is dismissed. The remaining issues may proceed to trial management conference and trial. The parties are at liberty to contact the trial coordinator directly to canvas dates which may be confirmed at the next scheduled appearance.

(g) Should the parties be unable to resolve the issues of costs of this motion, then in addition to the material referred to in subparagraph (c), they shall be entitled to serve and file their bills of costs along with written submissions not exceeding four pages within 30 days of the release of these reasons. The parties are entitled to reply to the opposing party’s written submissions by way of written reply not exceeding two pages, to be served and filed within five days following. The submissions of both parties shall be separate from those referred to in subparagraph (c) and shall clearly marked ‘Costs Submissions re: Motion’.

Released: June 27th, 2024 Signed: Justice G. Jenner /cdw