SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-367118

DATE: 20130411

RE: Jillian Bassett, Applicant

AND:

Matthew Bassett, Respondent

BEFORE: Czutrin J.

COUNSEL:
Harold Niman, for the Applicant

John Phillips, for the Respondent

HEARD: April 2, 2013

ENDORSEMENT

[1] On April 2, 2013, the parties and their counsel appeared before me to address the issue of what, if any, involvement/participation the Respondent may have in a hearing that will now proceed, after I struck the Respondent’s Answer, on November 30, 2012.

[2] Although the Family Law Rules provide:

(5) If a respondent does not serve and file an answer as this rule requires, or if the answer is struck out by an order,

(a) the respondent is not entitled to any further notice of steps in the case;

(b) in the case in any way;

(c) the court may deal with the case in the respondent’s absence; and

(d) the clerk may set a date for an uncontested trial.

it is not uncommon for the court to balance on one side of the dealing with cases justly as required by the Family Law Rules and the court’s need to have the best evidence available to make an appropriate disposition and on the other side of dealing with cases justly not allowing parties who have failed to comply with court orders putting the other party to great expense and then continued participation without any consequences. A courts tool box of contempt, costs, orders and striking a claim has little consequences if a party who fails to obey court orders and make disclosure is not affected by the courts orders and is willing to continue to put the other side to continuing expense without seeing a benefit.

[3] This case started on March 20, 2011, nearly a year after the parties’ separation.

[4] Soon after the parties’ separation they entered in a separation agreement resolving property issues, interim child support, but not parenting issues or spousal support.

[5] The Respondent acknowledged in his Answer that determining his income was the “main issue”. He has been self- employed and ran his various businesses through corporations. He has not kept up his record keeping and has fallen behind in having proper financial statements prepared and filing timely personal and company tax returns.

[6] The Respondent’s non-compliance with court orders began by his continuing failure to comply with a consent order made at a case conference on April 24, 2011, requiring him to pay the balances on certain loans. He also failed to pay certain parking tickets that he was ordered to pay.

[7] On December 20, 2011, I first dealt with this case and allowed the Respondent an additional two months to provide proof of the payments and warned that failure to provide proof “may result in his Answer being struck”.

[8] Of significance was the Respondent’s failure, as of December 20, 2011, since the case began to provide as I found a “level of disclosure that can give this court any comfort”. “… [H]e has not made adequate, relevant or required disclosure to establish his income.”

[9] I then made an order for disclosure.

[10] The Respondent appeared to have lived a more extravagant lifestyle than he disclosed as his income.

[11] On December 20, 2011, I had no other financial information to consider than the Separation Agreement and the Respondent’s financial commitment under that agreement for a period of five months.

[12] I asked him to make the disclosure and in the meantime to pay $1,353 per month child support and $1,900 per month special expenses plus $1,600 per month towards section seven expenses.

[13] He was to provide an Income Analysis.

[14] I made the order temporary-temporary so that with better evidence, the quantum of support could be revisited. All I really wanted was to get his attention and to take the case seriously.

[15] The Respondent changed lawyers as of May 7, 2012 to the lawyer who has acted for him until the April 2, 2013 appearance before me.

[16] While the Applicant requested that I strike the Respondent’s Answer at that time, I did not do so as I had hoped that with new counsel, the disclosure would be made and the Income Analysis provided and I would have the best evidence available to re-adjust support and to fix the “just” and appropriate amounts.

[17] Based on the Respondent’s submissions there was some expectation that an expert would be engaged and a report available by June 30, 2012. I ordered the Respondent to confirm the retainer of an expert and date by which a report would be ready.

[18] The Respondent never retained an expert as he had fallen behind in tax filings and preparation of financial statements for two companies.

[19] On October 10, 2012, I allowed the Respondent yet another indulgence and set deadlines for proof of payment of bank loans, disclosure of personal and corporate returns and attachments, a completed and updated financial statement and certain payments on outstanding court orders.

[20] The Respondent did not comply and I struck his Answer but gave him a further opportunity to seek to set aside the striking of the Answer if there was compliance. No motion to set aside was brought and thus we are here.

[21] I have in the circumstances set July 23, 2013 for the uncontested hearing. The Respondent asks that his previous affidavits and a new affidavit be allowed to be presented as his at the hearing.

[22] The Applicant asks that I limit his role to an observer and to make closing submissions.

[23] As I started, the challenge is the reality that to this date, he has fallen into considerable arrears and I expect that the Applicant will ask me to impute income to the Respondent without the best evidence. The Respondent claims that he owes a great deal of money and in particular for taxes. He has submitted that he may have to go bankrupt. There is both child and spousal support in issue.

[24] There is a good chance that he will not comply with the support order that may be fixed and the issue will return in the future. The Applicant will of course need to present the best evidence she can as to the Respondent’s income. To allow the Respondent to cross examine the Applicant without disclosure and to increase her costs is unjust.

[25] Until May 31, 2013, the Respondent may serve on Applicant’s counsel any third party documents that might help establish his income from separation to May 31, 2013. By third party documents I include the disclosure ordered to date and would include any financial statements of companies that he is shareholder of, corporate and personal tax returns, credit card statements previously ordered, and any certified to be true documents from the CRA. The financial statements should include source and backup documents, invoices, bank and credit card statements.

[26] The Respondent to also serve an up-to-date and completed Financial Statement (complete) by May 31, 2013.

[27] When the Applicant presents her case, she is to disclose what she has received, not as her evidence, but to establish what she has received. She may then decide how she wants to address such disclosure by her evidence or other witnesses

[28] The Applicant shall provide a draft of the Order of what she will ask the court to make as a Final Order.

[29] The Applicant may call the Respondent for purposes of cross-examination, but is not obliged to call him.

[30] The Respondent shall produce a draft Order of the Final Order he may wish the court to make.

[31] The Respondent may make submissions, but may not participate in any other manner. Submissions are restricted to the evidence that will be presented to the court on the return date and is not an opportunity to give evidence directly.

[32] Costs will be addressed at the conclusion of the hearing.

Czutrin J.

Released: April 11, 2013