Malcolm v. Richards, 2012 ONSC 1518

SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: FS-11-4568-00
Date: 2012-03-06

RE: ARTHUR MALCOLM v. MONICA RICHARDS

BEFORE: Justice Thomas A. Bielby

COUNSEL:
Appellant is Self-represented
R. Jarchow, for the Respondent

E N D O R S E M E N T

1The appellant appeals the order of Justice Patrick Dunn, Ontario Court of Justice, dated October 24, 2011, by which the appellant’s motion to vary was dismissed with costs.

2In October 2010, the appellant brought a motion to vary the final order of Dunn J., dated April 11, 2007. The appellant sought a reduction in support as well as increased access to his youngest daughter, Monet.

3The motion proceeded in the usual course. On February 14, 2011, Dunn J. made a disclosure order against the appellant and a second disclosure order, dated May 19, 2011. Both orders set time limits for the disclosure and the appellant did not comply with the terms of either order. The disclosure sought was of a financial nature.

4As a result of the non-compliance, the respondent brought a motion to dismiss the motion to vary, which resulted in the order of Dunn J., dated October 24, 2011.

5The appellant, as of October 24, 2011, had not filed any affidavit explaining why he could not comply with the outstanding orders.

6Some disclosure had been made, to the extent of producing an unorganized box filled with financial documents. The appellant’s 2010 tax return had not been disclosed. The appellant today advised it was not disclosed because he did not have the money to pay the accountant who prepared the 2010 return.

7Justice Dunn, in his handwritten endorsement, dated October 24, 2011, went through the history of the motion and noted the appellant, who had counsel, by not complying with the orders, should have recognized the possibility of his pleadings being struck.

8The learned judge found that the appellant ignored the two orders by choice, and found the disclosure that was made was too little, too late.

9The motion to vary was dismissed with costs.

10The appellant submits the judge was unfair in not allowing the matter to proceed and asks that I reinstate his motion.

11I will allow the appeal, in part, for the following reasons.

12Pursuant to Rule 14(23), the judge had the authority to strike the motion for failure to comply with outstanding orders. With respect to the appellant’s request that support be varied, the learned judge, on the facts before him, had the discretion to dismiss that portion of the motion.

13I find no real and palpable error in that regard.

14However, with respect to the request for increased access, I am bound by the Court of Appeal decision in King v. Mongrain , (2009) ONCA 486. In this decision, the Court of Appeal made it clear that the courts should use the utmost caution in striking pleadings where children’s interests are involved. The court ruled that a trial judge should have before him all the evidence. In the matter before me, Dunn J. never even addressed the access issue.

15Accordingly, I will allow the appeal in part and return the matter to the Ontario Court of Justice, on the issue regarding the variation of access. The appeal is dismissed with regards to the issue of a variation in support.

16On the issue of costs, I will uphold Dunn J.’s cost order, made October 24, 2011, except I will reduce the costs of that day to $500.00. The costs in regards to the May 14, 2011 appearance remain unchanged at $2,000.00.

17With respect to costs in relation to the appeal, I will accept written submissions of no more than three pages from the parties, filed within 10 days of the release of this endorsement.

Bielby J.