SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-117-11
DATE: 2013/01/10

RE: Douglas Wayne Quinn - Applicant

Lisa Ann Nicholson - Respondent

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
Applicant – Self-represented
Amy A Priestley, for the Respondent

DATE HEARD: January 7, 2013

E N D O R S E M E N T

[1] The Applicant Father and Respondent Mother began living together on June 22, 2004 and separated in or about August 2011, although the Applicant did not leave the residence owned by the Respondent until November 15, 2011.

[2] The parties have one child Ellie Madison Quinn, born May 27, 2005.

[3] In his Application issued November 8, 2011, the Applicant sought spousal support, child support, access (but not custody), a restraining order, equalization of net family property and exclusive possession of the matrimonial home (although the parties never married), freezing of assets and the sale of family property. There were also various claims for relief related to property issues.

[4] In her Answer, the Respondent claimed child support, custody, supervised access to the Applicant, and a restraining order.

[5] The home owned by the Respondent was sold on February 10, 2012.

[6] The Applicant initially moved for various relief, without notice, and prior to a case conference. The motion was directed to be argued on notice to the Respondent and was dismissed by Justice Glithero on December 7, 2011. Costs were awarded against the Applicant in the sum of $1,250.00 plus HST.

[7] The Applicant then moved for various relief, again without notice, which motion was adjourned to be argued on February 22, 2012. On that date Justice Campbell made an order granting interim custody of the child to the Respondent, with supervised access to the Applicant. The Applicant’s request that the Respondent be restricted from moving the child’s residence from the Waterloo region was dismissed, as was his request that she be restricted from disposing of her assets, as well as his request that the proceeds of sale of the home be placed into trust.

[8] The Applicant was ordered to pay child support in the sum of $300.00 per month, less than the guideline amount of $374.00, in recognition that the supervised access would be expected to be exercised in Chatham which would result in increased costs to the Applicant to exercise access. Pursuant to para. 10 of the Order, the Applicant was prevented from proceeding to with any further motion or amending his pleadings, pending payment of the costs award of Justice Glithero. Under para. 10(b) of the Order the Applicant was given leave to amend his Application to include a claim for unjust enrichment. It is noted in this respect that the Applicant filed an amended Application in December 2012 in the face of para. 10 of the Order requiring payment of the costs ordered by Justice Glithero prior to any amendment of his pleadings.

[9] Justice Campbell ordered the Applicant to pay costs to the Respondent fixed in the sum of $4,330.00.

[10] The Applicant has made no payment toward the costs awards of Justices Glithero and Campbell, and has not exercised the supervised access ordered by Justice Campbell.

[11] It appears that 50% of the Applicant’s income is being garnished in respect of an outstanding support order for two children of a previous relationship, in respect of which there are substantial arrears. The Applicant indicates that support payments began to be deducted by FRO for Ellie in October, 2012, however, no amounts have been received by the Respondent to date.

[12] The Respondent now moves for an Order striking the Applicant’s pleadings pursuant to Rules 1(8) and 14(23) of the Family Law Rules, for failure to obey court orders and allowing her to proceed on an uncontested basis, or in the alternative, for summary judgment dismissing the Applicant’s claims pursuant to Rule 16 of the Family Law Rules.

[13] Rule 1(8) provides that the court may deal with a failure to obey a court order in the case, or in a related case, by making any order it considers necessary for a just determination of the matter, including an order for costs, or an order dismissing a claim made by a party who has willfully failed to obey the order.

[14] Rule 14(23) provides that, in the event that a party does not obey an order that was made on motion, the court may, in addition to any other remedy allowed under the rules, dismiss the party’s case, postpone the trial or any another step in the case or make any other order that is appropriate, including an order for costs.

[15] In the recent case of Ciarlariello v. Iuele-Ciarlariello 2012 ONSC 6636 Justice J.P.L. McDermot, at para. 50, noted that the same considerations apply where dealing with a breach under either Rules 1(8) or 14(23). Justice McDermot followed the same approach adopted by Justice Penny J. Jones in Johanns v Fulford 2011 ONCJ 781 in following the three step process set forth by Justice Spence in Ferguson v Charlton 2008 ONCJ 1, as follows:

• First, the court must ask whether there 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), 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.

• 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 pursuant to the provisions of either subrule 1(8) or subrule 14(23).

[16] Justice Jones observed in Johanns, at para. 17, that the onus is on the party in breach to show, on a balance of probabilities, that subrule 14(23) is not applicable. She also noted that an order for payment of costs is captured by the subrule and that it would take an extraordinary event to trigger the “unless” provision of subrule 14(23).

[17] Justice Jones in Johanns also confirmed, at para. 20, relying on the decision of Justice Quinn in Gordon v. Starr 2007 35527 (ON SC), 2007, 42 R.F.L. (6th) 366, that an inability to pay the costs order is not a relevant consideration. Justice Quinn held at para. 20 of Gordon that if an ability to pay costs is ever relevant it is upon the making of the order, not when compliance is in issue.

[18] The Applicant makes four basic submissions with respect to his failure to satisfy the costs orders, as follows:

1. The costs orders only required that the Applicant’s counsel be paid the costs, and since the Applicant has paid her counsel, the orders have been satisfied;

2. The costs orders have been, or should be, paid out of the proceeds of the sale of the Respondent’s home, which is the subject of his unjust enrichment claim;

3. He does not have the ability to pay the costs orders as his pay is being garnisheed to the extent of 50% to pay child support and he barely has sufficient funds to support himself; and

4. The Respondent has not acceded to his request that the costs awards be paid in installments.

[19] The first ground is without merit. The costs awards were made against the Applicant and in favour of the Respondent to partially compensate her for the costs of the two motions, in accordance with Rule 24(1) of the Family Law Rules which provides that there is a presumption that a successful party is entitled to the costs of a motion. The costs orders were not made in favour of the Applicant’s counsel. The responsibility to pay the costs was placed on the Applicant.

[20] With respect to the second submission, the Applicant’s claim for unjust enrichment has not been adjudicated upon. The costs orders did not provide that payment should be delayed until final disposition of case, nor would be in any way tied to the Applicant’s claim for unjust enrichment. As indicated above, there is a presumption of entitlement to costs to a successful party at each stage of a proceeding, and therefore ordinarily, the determination of costs of motions, and the payment of ordered costs, is not deferred until the final disposition of the case.

[21] It is well-established that modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants (see Serra v Srrra 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.)). The commencement of the Application, and the bringing of the motions by the Applicant carried with it the risk of being ordered to pay costs if he was unsuccessful.

[22] The question of the relevance of the Applicant’s professed inability to pay the costs orders is largely dealt with by the principles in the Gordon case, and the cases which have followed it. The primary objective of the Family Law Rules is stated at Rule 2(2), namely, to enable the court to deal with cases justly. Under rule 2(3) this includes ensuring that the procedure is fair to all parties. Accordingly, it is not only the Applicant’s circumstances which must be considered, but also those of the Respondent, who has been required to respond, through counsel, and at considerable expense, to the Applicant’s motions, which encompassed a significant number of factual and legal issues and relatively extensive affidavit material.

[23] With respect to the proposal which the Applicant says he made to pay the costs order by installments, the affidavit record does not disclose such a request having been made, and the Respondent denies that such a proposal was made. In any event, there is no obligation on the Respondent to accede to such a proposal. The Applicant in fact made no payments in respect of the costs orders, notwithstanding his statement that he is prepared to pay them by installments.

[24] Having found that the costs orders have not been complied with, the next question is whether a discretion should be exercised in favour of the Applicant, as the non-complying party. On this question I am to take into account all relevant history in the course of the litigation and the conduct of the Applicant.

[25] The house owned by the Respondent having been sold, and an order for supervised access having been made, the remaining substantive claims of the Applicant are the terms of access, spousal support, and assuming the amendment of the Application was permitted notwithstanding para. 10 of the order of Justice Campbell, his claim for unjust enrichment.

[26] The Applicant has not exercised the supervised access ordered by Justice Campbell. He advises that this was due to delay on the part of the Respondent and her counsel to implement the arrangements for supervised access, and his contention that Ellie should receive counseling related to Parental Alienation Syndrome prior to any sort of access, supervised or unsupervised being initiated.

[27] I am satisfied on the basis of the record that the Respondent did nothing to frustrate the implementation of arrangements for the supervised access. Indeed, the evidence indicated that the Respondent and her counsel did everything reasonably required to facilitate the supervised access as expeditiously as possible. The order contemplated the access being exercised at Chatham once the Respondent relocated to Windsor, however, there was a suspension of operations of the only access centre in Chatham. The Respondent then registered for the supervised access to take place at St. Thomas where it could be initiated more quickly at a location closer to the Applicant, however, the Applicant did not cooperate. Ultimately, once the facility in Chatham became operational, arrangements were made for the access to be exercised there.

[28] There is no reliable evidence on the record that the Respondent has engaged in behavior designed to alienate Ellie from the Applicant. The Applicant’s allegations in this respect are unsupported and are based on assumption and supposition. The Applicant has not presented a supporting rationale suggesting that counseling would be beneficial to Ellie prior to access being initiated, nor has he presented a plan for who would carry out the requested counseling or how it would be funded.

[29] The most telling aspect of the conduct of the Applicant is his refusal to exercise the right for supervised access that he has been afforded pursuant to the order of Campbell, J. It could possibly be suggested that the failure to exercise the ordered access may constitute a failure to obey an order pursuant to rules 1(8) or 14(23), however, I have not been provided with any authority that a failure to exercise a permissive order, such as for access, as opposed to a mandatory order, may justify the application of those rules.

[30] However, in my view, the failure of the Applicant to exercise the ordered access, even though it may not, by itself, support an order striking his pleading, may, and should, be taken into account on the question of whether a discretion should be exercised in his favour. This is particularly so when coupled with a consideration of the nature of the Applicant’s remaining claims.

[31] Regardless of the striking of the Applicant’s pleadings, the court will retain jurisdiction to make a change to the access arrangements in the future, if deemed to be in Ellie’s best interests, and child support will always be subject to change in accordance with the Federal Child Support Guidelines based upon the parties’ fluctuating income. However, since the Applicant has not exercised his entitlement to supervised access, the court has nothing to go on in assessing how such access is going, or whether other measures or interventions related to Ellie’s well-being may be advisable. It is important that Ellie be given the opportunity to re-establish a meaningful relationship with the Applicant, and the commencement of the supervised access ordered by Justice Campbell is the first step in allowing that to happen.

[32] The Applicant’s remaining claims for spousal support and for unjust enrichment, even if it is properly advanced, are of questionable merit and involve relatively small amounts compared to the projected costs in litigating them. I find therefore find that the requirement for “exceptional circumstances,” justifying the exercise of discretion in favour of the Applicant, has not been satisfied. In addition, there is no other available remedy or measure which could be imposed which would adequately sanction the Applicant for failure to obey the Orders. A further award of costs, as a sanction, would be meaningless.

[33] The Applicant suggests that the Respondent is in default in filing an updated Financial Statement, as a requirement for the bringing of her motion under the Family Law Rules, and therefore, the relief sought by the Respondent should be denied.

[34] Rule 13(1) requires a Financial Statement with a motion which contains a claim for support, a property claim or a claim for exclusive possession of the matrimonial home and its contents, none of which are present on the present motion. The motion is for an order striking pleadings, or in the alternative, for summary judgment. An updated Financial Statement was not required as a precondition to the Respondent bringing the motion.

[35] Even if the alternative claim for summary judgment may be considered to be a claim for support in the sense that it concerns child support in part, thereby requiring an updated Financial Statement, for the reasons set forth below, it is not necessary to deal with that aspect of the motion.

[36] It is therefore ordered that the Application of the Applicant Douglas Wayne Quinn be struck out for failure of the Applicant to obey the orders for costs of Justices Glithero and Campbell dated December 12, 2011 and February 22, 2012 respectively, and that the Respondent be permitted to proceed on an uncontested basis.

[37] In light of the foregoing it is not necessary for me to deal with the Respondent’s alternative claim for summary judgment.

[38] The parties may make written submissions with respect to costs – the Respondent by January 31, 2013 and the Applicant by February 8, 2013. The submissions shall not exceed three double-spaced pages, not including a Bill of Costs, any Offers to Settle or legal authorities.

D. A. Broad J.

DATE: January 10, 2013