ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F385/10

DATE: 2013/02/15

BETWEEN:

Lorraine Tanya Levely

Applicant

– and –

Jamie Wade Levely

Respondent

Monica Scholz

Counsel for the Applicant

HEARD: February 1, 2013

THE HONOURABLE MADAM JUSTICE DEBORAH CHAPPEL

I. OVERVIEW AND BACKGROUND

[1] This matter came before me for a determination of whether the Respondent’s Motion to Change Final Order commenced on July 18, 2012 (“the Motion to Change”) should be dismissed and all documents filed in support of the motion should be struck, and whether the Applicant’s claims set out in her Response to Motion to Change dated August 16, 2012 should proceed on an uncontested basis.

[2] By way of background, the parties were married in 1997, separated in 2009 and were divorced in 2012. There are two children of their relationship, namely Kyle James Levely, born April 26, 2000 and Joshua Evan Levely, born August 18, 2003 (“the children.”). On January 24, 2012, Mazza, J. made a final order in the context of Family Law proceedings arising from the parties’ separation dealing with a number of issues. For the purposes of this hearing, the following provisions of that order are relevant:

1. Paragraph 5 of the order required the Respondent to deliver to the Applicant the children’s original birth certificates and social insurance cards by January 26, 2012.

2. Paragraph 15 of the order required the Respondent to pay the Applicant child support for the children in the amount of $1,037.00 per month commencing February 1, 2012, based on the Respondent’s annual income of $70,000.

3. Paragraph 21 of the order required the Respondent to pay non-variable spousal support to the Applicant in the amount of $1,058.00 per month commencing on February 1, 2012 up to and including February 1, 2019.

4. Paragraphs 22 and 23 required the Respondent to maintain the Applicant and the children as beneficiaries of any health benefits coverage available to him through his employment for their benefit for so long as they remained eligible beneficiaries. The Respondent was required to keep the Applicant apprised of the particulars of available benefits. Furthermore, if the Applicant was required to pay for any health related expenses respecting herself or the children which were covered by the Respondent’s health benefits insurance, the Respondent was required to forthwith either reimburse the Applicant or endorse over to the Applicant any cheque the Respondent received in reimbursement amounts paid by the Applicant.

5. Paragraph 24 required the Respondent to maintain the Applicant as sole beneficiary of a policy of insurance on his life with death benefits in the amount of $300,000.00, for so long as the Respondent was required to pay either child or spousal support. The Respondent was also ordered to provide evidence of such policy and payment of the premium annually to the Applicant.

[3] The Respondent commenced his Motion to Change on July 18, 2012, requesting an order reducing his child support obligation to $373.00 per month effective February 1, 2012, and suspending his spousal support obligation. In her Response to Motion to Change Final Order, the Applicant requested an order for disclosure of the Respondent’s employment file from BHC Cable Assemblies Inc. (“BHC”) as well as specified particulars regarding all efforts which the Respondent has made to find employment since his alleged termination from BHC. The Applicant also asked for an order requiring the Respondent to comply forthwith with paragraphs 5, 22, 23 and 24 of the order dated January 24, 2012.

[4] On August 21, 2012, Scott, J. made a further final order in the context of the originating proceedings in this case, dealing with the outstanding issues in that proceeding. The relevant provisions of that order for the purposes of this hearing are as follows:

1. Paragraph 6 of the order provided that the Applicant was to be the sole trustee of the children’s Educational Savings Plan through Concentra Financial, specifically plan # 41010356.

2. Paragraph 8 of the order specified that the Respondent’s Motion to Change was to be limited to requesting a variation of child support from and including September 2, 2012.

3. Paragraph 9 of the order required counsel for the Respondent to hold back the sum of $1,500.00 from the property settlement proceeds owing to the Respondent, for the purpose of paying not less than three years of the premium on the life insurance required to be obtained pursuant to paragraph 24 of the January 24, 2012 order.

[5] The Motion to Change was scheduled for a case conference before me on December 5, 2012. The Respondent did not appear on that date. His counsel, Mr. Castle, appeared, and brought a Motion returnable on that same day requesting an order that he be removed as counsel of record for the Respondent. I granted that order, and proceeded with the case conference in the absence of the Respondent. On that date, I made an order amending the Applicant’s Response to Motion to Change to include a request that paragraph 6 of the order dated August 21, 2012 be changed to show the correct number of the children’s educational savings plan as being 1010356. I also made an order requiring the Respondent to do the following by December 31, 2012:

1. To comply with paragraphs 5, 22, 23 and 24 of the order dated January 24, 2012.

2. To produce to the Applicant a copy of his complete employment file from BHC, together with full particulars of all efforts which he has made to find employment since his termination from BHC, including:

(a) Copy of updated resume;

(b) Proof of each application made;

(c) Date of each application made;

(d) Copy of any response received to each application;

(e) Details as to whether or not an interview was offered to him; and

(f) Copy of any response received after each interview.

3. To produce to the Applicant proof of year to date income for 2012 from all income sources.

4. To pay the Applicant costs of the case conference in the amount of $750.00.

[6] On December 5, 2012, I adjourned the Motion to Change to a hearing on January 8, 2013, for the purpose of determining whether the Respondent had complied with the terms of my order, whether the Motion to Change should be dismissed on the basis of non-compliance with the order, and whether the Applicant should be permitted to proceed with her claims as set out in her Response to Motion to Change on an uncontested basis. I ordered both parties to serve and file affidavit evidence by January 4, 2013, setting out all available evidence respecting the issue of the Respondent’s compliance. The parties were also ordered to serve and file written submissions and Books of Authorities in support of their positions at the hearing. I made an order requiring that the Respondent be served not only at his address for service noted on his court documents filed in this proceeing, but also to another address provided by his counsel as well as by email.

[7] The Applicant served the Respondent with a copy of my December 5, 2012 endorsement on December 5, 2012 in the manner which I ordered on December 5, 2012. She served the Respondent with her affidavit sworn January 3, 2013, Book of Authorities and written submissions in support of this hearing on January 4, 2013, but was unable to file these materials with the court in time for the hearing on January 8, 2013. The Applicant attended court on January 8, 2013, but the Respondent failed to appear. The hearing was adjourned to January 28, 2013. The Applicant served the Respondent with a copy of my endorsement dated January 8, 2013, which set out the return date. The hearing was subsequently adjourned through the Trial Coordinator’s office to February 1, 2013 at 10:00 a.m.

[8] The Respondent did not appear in court on February 1, 2013. He did not serve and file an affidavit setting out his position regarding his compliance with my order dated December 5, 2012, as he was ordered to do on December 5, 2012. He did not serve and file written submissions or a Book of Authorities in relation to this hearing, as I ordered him to do on December 5, 2012. Based on the Applicant’s affidavits sworn August 16, 2012 and January 3, 2013, I am also satisfied of the following:

1. He has not provided the Applicant or her counsel with the disclosure which I ordered him to produce on December 5, 2012.

2. He has not complied with paragraph 5 of the final order of Mazza, J., despite requests from Applicant’s counsel that he do so.

3. He has not complied with paragraphs 22 and 23 of the final order of Mazza, J. dated January 24, 2012, despite requests from the Applicant’s counsel that he do so.

4. He has not complied with paragraph 24 of the final order of Mazza, J. dated January 24, 2012, despite requests from Applicant’s counsel that he do so.

5. He has not paid the costs which I ordered him to pay on December 5, 2012.

[9] The Applicant requests the following relief in response to the Respondent’s failure to comply with the orders dated January 24, 2012 and December 5, 2012:

1. That the Respondent’s Motion to Change be dismissed and that all documents filed in support of that Motion to Change be struck.

2. That the Respondent be prevented from bringing any further motions or other proceedings before this court until he has:

(a) Complied with the disclosure and costs terms of the December 5, 2012 order;

(b) Provided full particulars of any employment or income source that he has had since being terminated from BHC, including:

1. Copy of his employment contract or offer of employment;

2. Complete details from his employer of any and all benefits associated with his employment including health benefit coverage, life insurance, pension, profit-sharing, stock options, employee incentives; and

3. Proof of his total earnings including taxable benefits;

(c) Provided proof that he has kept the Family Responsibility Office (“FRO”) apprised of any and all changes to his income sources;

(d) Paid all of the support and other sums owing to the Applicant pursuant to the terms of any existing orders;

(e) Paid all costs orders against him; and

(f) Paid into court $5,000.00 as security for costs prior to bringing any further proceeding.

3. An order that the Respondent be imputed an income of $100,000.00, and that he pay child support to the Applicant in the amount of $1,416.00 per month commencing September 1, 2012 based on this income.

4. An order that the Applicant be permitted to have her claims as set out in her Response to Motion to Change adjudicated upon on an uncontested basis.

5. An order requiring the Respondent to reimburse the Applicant for all costs associated with obtaining new birth certificates and social insurance cards for the children, and that these costs be enforced by the FRO as part of the Respondent’s arrears of support.

6. An order requiring the Respondent to reimburse the Applicant for all health related expenses for herself and the children, and that these expenses be enforced by the FRO as part of the Respondent’s arrears of support.

7. An order requiring the Respondent to reimburse the Applicant for all premiums paid by her to put into place a $300,000.00 life insurance policy on the Respondent’s life, and that the amount of these premiums be enforced by the FRO as part of the Respondent’s arrears of support.

8. An order amending paragraph 6 of the order of Scott, J. dated August 21, 2012 to show the correct plan number of the children’s educational savings plan.

II. ANALYSIS

[10] The Family Law Rules include a number of provisions aimed at addressing situations such as the one which has developed in this case, where one of the parties chooses not to comply with court orders and/or not to participate responsibly in the court process. The relevant Rules for the purposes of this hearing are as follows:

1. Rule 1(8) gives the court a broad discretion to craft a remedy in response to a party’s failure to follow the Rules, or their failure to obey an order in the case or a related case. It stipulates that in those circumstances, the court may make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate,” including an order for costs, and an order dismissing a claim made by the party who has “wilfully failed to follow the rules or obey the order.”

2. Rule 13(17) provides that if a party does not comply with an order requiring them to provide financial information, the court may make any appropriate order, including an order dismissing the party’s case and striking out any document filed by the party and a contempt order.

3. Rule 14(23) provides that a party who does not obey an order made on motion is not entitled to any further order from the court unless the court orders that this Rule does not apply. The Rule further stipulates that in addition to any other remedy permitted under the Rules, the court may make any order that is appropriate including an order dismissing the party’s case, striking out the party’s answer or any other document filed by the party, or an order for costs.

[11] In addition to these Rules, the court has an inherent jurisdiction to make any order which it considers appropriate in order to address a party’s failure to respect the court process, including failure to comply with court orders. This authority includes the jurisdiction to strike a claim of a party who is in breach of an order.[^1]

[12] Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

[13] The Rules referred to above are the main tools which a judge presiding over Family Law matters has in their toolbox to prevent a party from embarking upon the game of litigation abuse. The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner. Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the non-compliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.

[14] In this case, the Applicant has requested an order dismissing the Respondent’s Motion to Change and striking all documents filed in support thereof. The Ontario Court of Appeal has held that this remedy is limited to serious cases of deliberate, persistent non-compliance, disregard for the court process and failure to either comply or adequately explain non-compliance.[^2] I am satisfied that this test has been met in this case. The Respondent was the party who initiated these proceedings, yet he has failed to attend court. His counsel was compelled to bring a motion to be removed as counsel of record. The evidence before me indicates that the Respondent has not complied with a number of the terms of the January 24, 2012 order or with the terms of my order dated December 5, 2012. I gave him the opportunity to submit evidence outlining the details of his compliance with these orders, but he failed to do so. The matter was specifically adjourned to a hearing to determine whether his Motion to Change should be dismissed, and whether the Applicant’s claims should proceed on an uncontested basis. The Respondent was notified of this hearing. He did not file any affidavit materials, written submissions or Books of Authorities in relation to the hearing, which I ordered him to do.

[15] Based on the evidence before me, I conclude that the Respondent has demonstrated a blatant and persistent disregard for the court process and court orders. His conduct has caused significant inconvenience and expense for the Applicant and must be sanctioned. An order dismissing the Respondent’s Motion to Change, striking the documents which he has filed in support of same, and permitting the Applicant’s claims as currently set out in her Response to Motion to Change to proceed on an uncontested basis is necessary in order to ensure that justice is done in this case.

[16] Given that the Respondent failed to participate in these proceedings which he started, and his failure to serve and file a Notice of Withdrawal respecting his claims, it is appropriate to place limitations on his ability to initiate any further Family Law proceedings involving the Applicant and the children. Neglecting to do so would expose the Applicant to the potential for further disruptive, unsettling and expensive litigation. The relief which the Applicant has requested as set out in paragraph 9(2) above is appropriate on the facts of this case. At the hearing of this matter on February 1, 2013, I expressed reservation about granting the relief set out in paragraph 9(2)(f) above, requiring the Respondent to post $5,000.00 as security for costs prior to initiating any further Family Law proceedings, given that Rule 24(13) provides that a formal Motion be brought in order to obtain such an order. However, upon further consideration, I conclude that Rule 24(13) does not override the more general discretion granted to the court pursuant to Rules 1(8), 13(17) and 14(23), and the court’s inherent jurisdiction to make any appropriate order in response to a party’s failure to comply with court orders and disrespect for the court process.

[17] I am not prepared to grant the Applicant the relief set out in paragraph 9(3) above at this time. The request for an order imputing a higher income to the Respondent and for child support based on that income was not included in the Applicant’s Response to Motion to Change. The first notice of these claims to the Respondent was in the Applicant’s Written Submissions in support of this hearing. I am not satisfied that this constitutes sufficient notice to the Respondent that these were issues that the court would be addressing at this hearing, having regard for the significance of this requested relief. The most appropriate course of action in relation to these claims is to make an order amending the Applicant’s Response to Motion to Change to include the claims, and to schedule a return date to determine whether the Respondent has responded to the claims.

[18] The requested relief outlined in paragraphs 9(4) to (7) is appropriate on the facts of this case. Remedies for non-compliance with court orders should focus on redressing the wrongs inflicted on the party who was intended to benefit from the orders. The relief requested does this by requiring the Respondent to reimburse the Applicant for the expenses which she has and will have to in future incur in order to place herself in the position which she would have been in had the Respondent complied with the January 24, 2012 order. With respect to the relief outlined in paragraph 9(6), the Respondent should be responsible for any health care expenses as of the date of the January 24, 2012 order.

[19] The Applicant is requesting that I make an order for costs in the amount of $10,000.00. However, the Bill of Costs which counsel for the Applicant filed in support of this claim did not include a number of items for which the Applicant is claiming costs after January 1, 2013. In addition, as ordered below, there will be a further appearance in this matter on April 15, 2013. For these reasons, I prefer to deal with the issue of costs of these proceedings on a global basis on April 15, 2013. I require an updated and very detailed Bill of Costs on the return of this matter, as I note that costs were previously ordered on August 10, 2012 and on December 5, 2012. A detailed Bill of Costs is required in order to ensure that the final costs order does not result in any duplication.

III. TERMS OF ORDER TO ISSUE

[20] Based on the foregoing, an order shall issue as follows:

1. The Respondent’s Motion to Change Final Order dated July 18, 2012 is dismissed, and all documents filed by the Respondent in relation to that Motion to Change Final Order are struck.

2. The claims set out in the Applicant’s Response to Motion to Change Final Order as of August 16, 2012 shall proceed on an uncontested basis.

3. The Applicant’s Response to Motion to Change is amended to include a claim for an order imputing an annual income to the Respondent of $100,000.00, and requiring the Respondent to pay the Applicant child support in the amount of $1,416.00 per month for the children Kyle James Levely, born April 26, 2000 and Joshua Evan Levely, born August 18, 2003 (“the children”) based on that income, commencing September 1, 2012.

4. The Respondent shall by April 5, 2013 serve and file an up-to-date Financial Statement to which he shall attach the disclosure ordered in paragraphs 2 and 4 of the order dated December 5, 2012, as well as the following:

(a) A summary setting out full particulars of any employment or income source that he has had since being terminated from his employment at BHC Cable Assemblies Inc. (“BHC”), including:

(i) Copies of any employment contracts or offers of employment which he has received since his termination from BHC;

(ii) Complete details from any employer which he has had since his termination from BHC of any and all benefits associated with his employment, including health benefit coverage, life insurance, pension, profit-sharing, stock options, and employee incentives; and

(iii) Proof of his total year to date income for 2013 including taxable benefits.

5. The Respondent shall reimburse the Applicant for the following expenses:

(a) All expenses associated with obtaining new birth certificates and social insurance cards for the children.

(b) All health related expenses respecting herself and the children which the Applicant has incurred since January 24, 2012, and which she may incur in the future. This term shall remain in effect until:

(i) The Respondent has complied fully with paragraphs 22 and 23 of the final order of Mazza, J. dated January 24, 2012 and is in receipt of written acknowledgement from the Applicant that he has complied fully with those terms; or

(ii) The Respondent has obtained a further order of this court terminating this term, obtained in the context of a Motion to Change Final Order after the Respondent has complied fully with all of the terms set out in paragraph 8 herein.

(c) All premiums paid by her to date or in the future to put into place and maintain in effect a life insurance policy on the Respondent’s life, on the same terms and for the same period of time as the life insurance policy referred to paragraph 24 of the order of Mazza, J. dated January 4, 2012.

6. The Applicant shall provide the Respondent with proof of the expenses referred to in paragraph 5 herein by sending a copy of said proof by regular mail to 1085 Harrowgate Drive, Unit 33, Ancaster, Ontario L9K 1M2, and to 321 Stonehenge Drive, Ancaster, Ontario, L9K 0E8, and also by scanning and emailing same to jlevely@hotmail.com. The Respondent shall reimburse the Applicant for these expenses within twenty one days after the Applicant has sent him the proof in the manner provided for in this paragraph. These expenses are on account of child support and shall be enforced as such by the Family Responsibility Office (“FRO”) upon the Applicant providing FRO with a sworn affidavit confirming that proof of the expenses has been sent to the Respondent in the manner provided for in this paragraph, and that she has not received reimbursement from the Respondent within the time-frame set out in this paragraph.

7. Paragraph 6 of the order of Scott, J. dated August 21, 2012 is amended to show the correct plan number of the children’s educational savings plan as being 1010356.

8. The Respondent may not initiate any further Family Law motions or other proceedings involving the Applicant or the children unless he satisfies the court by means of affidavit or oral evidence that he has:

(a) Complied fully with the disclosure terms set out in the order dated December 5, 2012 order and in this order;

(b) Provided proof that he has kept FRO apprised of any and all changes to his income sources;

(c) Paid all of the support and other sums owing to the Applicant pursuant to the terms of any existing orders, this order and any order made subsequent to this date but prior to the commencement of his Motion to Change, including but not limited to costs orders; and

(d) Paid into court $5,000.00 as security for costs prior to bringing any further proceeding.

9. Court Services staff are directed to send a copy of this endorsement to the Respondent by regular mail forthwith to the addresses referred to in paragraph 6 herein, and to file a copy of the related covering letter in the Continuing Record. The Applicant shall also forthwith serve the Respondent with a copy of this endorsement by sending it to the Respondent in the manner referred to in paragraph 6 herein, and shall file an affidavit of service by April 5, 2013.

10. The Applicant shall also serve and file any additional material which she intends to rely on in support of the claims referred to in paragraph 3 herein by March 29, 2013. Service of these materials on the Respondent shall be by sending the materials to the Respondent in the manner provided for in paragraph 6 herein.

11. If the Respondent intends to defend the claims referred to in paragraph 3 herein, he shall comply fully with the terms of the orders dated January 24, 2012, December 5, 2012 and this order by April 5, 2013. Further, he shall serve and file an affidavit confirming that he has complied with said orders, attaching any available proof of said compliance, and setting out all available evidence in support of his defence to the Applicant’s claims.

12. This matter is adjourned to be spoken to on April 15, 2013 at 2:30 p.m. If the Respondent has not complied with paragraph 11 herein, the Applicant’s claims referred to in paragraph 3 herein may in the court’s discretion proceed on an uncontested basis on that date.

13. The issue of costs of these proceedings, including but not limited to costs in connection with the court appearances on January 8, 2013 and February 1, 2013, is reserved to April 15, 2013.

14. Counsel for the Applicant shall file a detailed and current Bill of Costs on the return date, which shall not include items in relation to which costs were already ordered on August 10, 2012 and December 5, 2012.

15. Approval of the draft of this order as to form and content by the Respondent is dispensed with. Service of this order on the Respondent shall be effected by sending the order to the Respondent in the manner provided for in paragraph 6 herein.

The Honourable Madam Justice Deborah L. Chappel

Date: February 14, 2013

COURT FILE NO.: F385/10

Lorraine Tanya Levely
Applicant

– and –

Jamie Wade Levely
Respondent

REASONS FOR JUDGMENT

The Honourable Madam Justice Deborah L. Chappel

Released: February 15, 2013

[^1]: Hughes v. Hughes, 2007 10905 (ON SC), [2007] O.J. NO. 1282 (Ont. S.C.J.).

[^2]: Ablett v. Horzempa, 2011 ONCA 633 (C.A.); Woolf v. Woolf, 2001 CarswellOnt 2993 (C.A.); see also Lanfrey v. Lanfrey, 2003 CarswellOnt 2229 (S.C.J.).