DaRosa v. Gillespie, 2013 ONSC 3072

CITATION: DaRosa v. Gillespie, 2013 ONSC 3072

COURT FILE NO.: FS-09-352145

DATE: 20130527

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maria DaRosa, Applicant/Respondent in the Motion

AND:

Alexander Gillespie, Respondent/Applicant in the Motion

BEFORE: Kiteley J.

COUNSEL: E. Llana Nakonechny, for the Applicant/Respondent in the Motion

Self-represented

HEARD: April 30, 2013

ENDORSEMENT

[1] This is a motion by the Respondent father to set aside the order made by Paisley J. dated December 20, 2012 striking his pleadings and for other relief. For the reasons that follow, I grant the order setting aside the December 20th order.

Background

[2] The Applicant and Respondent were married in August 1996. Their children are Matthew (born May 3, 2003) and Mitchell (born July 13, 2007). The parents separated in August 2009. The Applicant started this proceeding on September 3, 2009.

[3] On October 8, 2009, Goodman J. made an order on consent pursuant to which the Applicant mother had interim sole custody of the children and the Respondent father was to have access as agreed or by court order. The Respondent had consented to an order that he not introduce or expose the children to Rachel P. at any time until further court order or agreement.

[4] On October 21, 2009, Paisley J. made an order on consent suspending the access by the Respondent father but continuing telephone access.

[5] On September 22, 2010, Justice Gloria Klowak held a case conference and noted that all issues had been canvassed. She noted that the Applicant intended to amend her pleading; that the parties were going to continue discussion about a professional assessment and about support. She authorized questioning. As a next step, she encouraged a settlement conference or another case conference.

[6] On April 27, 2012, Justice Mesbur held a settlement conference and adjourned it to continue before her on July 6, 2012. She made a consent order severing the divorce and authorized the parties to bring motions. On July 6th, the endorsement of Justice Mesbur indicated that the settlement conference had been concluded and the next step should be a trial management conference. She noted that the financial disclosure by the Respondent remained outstanding and she directed him to produce the following by August 31, 2012:

(a) Bank statements (general and trust) for his practice from 2009 onward;

(b) Personal bank statements from 2009 onward;

(c) Credit card statements from 2009 onward;

(d) Back up documents for any other assets and liabilities from 2009 onward;

(e) Copies of tax returns (with all attachments and schedules) for 2008 to 2011 inclusive as filed. The Respondent shall file these income tax returns with Canada Revenue Agency by the end of August 2012.

[7] Her endorsement indicated that if he failed to produce as directed, the Applicant could bring a motion to strike his pleadings. She noted that the parties were working out some new arrangements for the children, including the involvement of some mental health professionals and on that basis she directed a further settlement conference on September 12, 2012 before her to review the arrangements for the children.

[8] The Respondent father brought a motion returnable July 26, 2012 in which he sought to establish a regular routine for unsupervised access. Ms. Nakonechny was on vacation and sought an adjournment. Justice Goodman made an endorsement on consent adjourning the motion to August 2, 2012 (on conditions as to delivery of materials) and directing that the Respondent father would have the children August 9 – 14 at the cottage in the presence of a relative. She directed the Respondent father not to drive the vehicle with the children.

[9] On August 2, 2012 the motion was adjourned to September 20, 2012 for a long motion.

[10] On September 11, 2012, the Applicant mother brought a motion to strike his pleadings for failure to provide the disclosure ordered on July 6, 2012. In her endorsement dated September 11, 2012, Herman J. noted that his explanation was that he had not been able to comply because of extreme levels of stress, but that he intended to do so. He requested more time. Herman J. directed him to comply within 30 days of September 11, 2012. The Applicant mother also raised a concern about being put to the expense of a settlement conference and a long motion without the respondent having complied with the order. However, since the settlement conference and the pending motion dealt with the children, Herman J. was not prepared to adjourn them. She ordered the Respondent father to pay costs in the amount of $1000 within 30 days.

[11] On September 12, 2012, Mesbur J. made an endorsement at the conclusion of the settlement conference in which she noted that the issue remained whether there should be unsupervised access and whether there should be an independent medical examination concerning the Respondent father as to his current psychiatric status. Mesbur J. noted that she had made suggestions as to how those issues might be addressed.

[12] By the end of September, 2012, Dr. Peter Sutton had begun an assessment as to whether supervision of visits was necessary. This was not a s. 30 assessment.

[13] The Applicant mother brought another motion to strike pleadings on the basis of the non-compliance with the order of Herman J. The Respondent father had produced some disclosure including bank and other documents two days before the motion. He took the position that except for outstanding income tax returns, all other disclosure has been provided and the CRA had granted him an extension until December 17, 2012 to file his outstanding returns. In his endorsement dated November 29, 2012, Paisley J. concluded that a brief adjournment was appropriate to allow him to file his 2010 and 2011 tax returns with CRA and to serve them by December 17, 2012 and to give the Applicant mother sufficient time to analyze the other productions to determine whether he had otherwise complied with the outstanding order.

[14] Paisley J. noted that the Respondent father had not paid basic child support since June 28, 2012. His financial statement sworn April 23, 2012 indicated annual income of $135000 which yielded a child support payment of $1838 per month. The Respondent father took the position that he had been paying over $3000 per month for supervised access visits and he had borrowed $20000 to pay for the assessment. Paisley J. made an order that required the Respondent father to pay child support in the amount of $1838 per month and to pay the accumulated arrears from July 1, 2012 as a term of the adjournment. His endorsement indicated as follows:

If he fails to do so [i.e. pay the arrears] or fails to serve his income tax returns by December 17, 2012 the Applicant may move ex parte to strike his pleadings and to proceed to determine the financial issues (emphasis added) on affidavit evidence at trial on motion in writing.

Costs of this motion are fixed at $2500 payable by the Respondent within 30 days, to be collected as support by Family Responsibility Office.

[15] Dr. Sutton’s report is dated December 9, 2012. One of the issues addressed by Dr. Sutton was the involvement of Rachel P. in the life of the Respondent father. Rachel is described as a sex worker with whom the Respondent father had commenced an affair in the spring of 2009. In the summer of 2009, there was a robbery at the home of the Respondent father that may have been associated with Rachel P. During the assessment, the Respondent father insisted that he no longer had a relationship with Rachel P. In late November, as Dr. Sutton was completing his report, he noted that the Applicant mother had received an anonymous phone call indicating that her husband was having lots of men and women coming into and out of his house. Upon further investigation, the Respondent father admitted that he had begun seeing Rachel P. but he insisted that that did not create any danger. As Dr. Sutton noted, the Respondent father did not appear to recognize that there was a very important issue to do with trust and truthfulness. Dr. Sutton also noted that the Respondent father was distressed because his uncle, on whom he had relied for emotional support and to pay the cost of professional supervision of the children when in his care, had stopped supporting him because he too had learned about Rachel P. On December 11th, Dr. Sutton met with the parents and, amongst other things, advised that he was unable to support unsupervised access at that time except for brief periods. He subsequently clarified that that meant 2 – 3 hours.

Order that is the subject of this motion

[16] The Applicant mother brought a motion without notice in which she relied on earlier affidavits and her affidavit sworn December 19th. In that affidavit, she reviewed the history of the proceedings and the email communications with the Respondent. At paragraph 17, she quoted from the order made on November 29th and specifically the provision that the motion could be brought ex parte to strike the Respondent’s pleadings and proceed to determine the financial issues. She said that the Respondent father had served a motion for leave to appeal the order of Paisley J., that there had been some disagreement between the Respondent father and Ms. Nakonechny as to the form of the order, that the Respondent father had served an amended motion for leave to appeal but had not served other material, and that, on December 17th, he had advised that he would not be proceeding with the motion for leave to appeal. She noted that the Respondent father had not served the 2010 and 2011 income tax returns, had not paid the arrears of child support, and had not paid the costs of $2500. The Applicant mother also reported that at a meeting with Dr. Sutton on December 11th, he told the parents that he did not support unsupervised access to the children.

[17] On December 20, 2102, Paisley J. signed an order as follows:

1. The Respondent’s Answer is hereby struck.

2. The Applicant shall proceed to determine the issues on Affidavit evidence at trial on motion in writing.

3. The Respondent shall pay the Applicant’s costs on a Substantial Indemnity Scale fixed in the amount of $1000 within 30 days of the date of this Order.

[18] There is an important difference between the November 29th endorsement and the December 20th order in that the distinction as to financial issues does not appear in the latter document.

[19] Pursuant to Family Law Rule 10(5), when an Answer is struck out by an order, the respondent is not entitled to any further notice of steps in the case; the respondent is not entitled to participate in the case in any way; the court may deal with the case in the respondent’s absence; and the clerk may set a date for an uncontested trial.

Motion to set aside ex parte order to strike pleadings

[20] Rule 2(2) of the Family Law Rules states that the primary objective of the rules is to enable the court to deal with cases justly. In rule 2(3), dealing with a case justly includes ensuring that the procedure is fair to all parties. The court is required to apply the rules to promote the primary objective and to do so by active management of the cases.

[21] Pursuant to rule 1(7) if a matter is not covered in the Family Law Rules, then the court may refer to the Rules of Civil Procedure. Pursuant to rule 59.06(1) of the Rules of Civil Procedure, an order that contains an error arising from an accidental slip or omission may be amended on a motion. Pursuant to rule 19.08 of the Rules of Civil Procedure, a judgment against a party who has been noted in default may be set aside or varied by the court on such terms as are just. The moving party must demonstrate that he has brought the motion as soon as possible; that he has a plausible explanation for the default; and that he has advanced facts to support an arguable case. In the absence of a Family Law rule on point, I intend to apply rule 59.06(1) and to take the approach applicable to rule 19.08.

[22] At the outset of the hearing on April 30th, Ms. Nakonechny made a preliminary objection that the motion to set aside the order of Paisley J. ought not to be heard because the Respondent father had failed to pay outstanding costs orders. I noted her objection but did not require compliance before hearing submissions.

[23] Ms. Nakonechny also objected to the late filing of affidavits by the Respondent father (dated April 29, 2013), by Rachel P. (dated April 29, 2013), by BB and JR (both dated April 28, 2013). Given the significance of the issues before me, I allowed him to rely on the affidavits.

[24] In his November 29th endorsement, Paisley J. permitted the Applicant mother to move ex parte to strike pleadings and directed that the matter would proceed to determine the financial issues. There is nothing in the endorsement made November 29th to indicate that Paisley J. intended to eliminate the Respondent father’s participation insofar as parenting issues were concerned. Indeed, he emphasized that he was dealing only with financial issues. His approach to distinguishing financial issues and other issues including parenting issues is consistent with the Court of Appeal’s direction that it is generally preferable to avoid the sanction of striking pleadings where children’s interests are involved.[^1] I agree with the Respondent father that that could only mean that his pleadings related to financial issues would be struck. It did not mean that his Answer as it related to custody and access would be struck. Notwithstanding that clear distinction that Paisley J. had no intention of affecting the parenting issues, the order dated December 20, 2012 does not make that distinction.

[25] Pursuant to rule 59.06 (1) of the Rules of Civil Procedure the part of the order that struck the Answer as it relates to non-financial issues must be set aside on the basis of error.

[26] I turn to whether the entirety of the order should be struck out.

[27] On February 22nd, Ms. Nakonechny sent a copy of the December 20th order to the Respondent father. He immediately advised that he intended to bring a motion to set it aside. On April 3rd and 5th, he served a notice of motion, a financial statement, an affidavit and a factum. On April 9th, Justice D.A. Wilson made an endorsement noting that it was not on the list that day and the Applicant mother had not had an opportunity to serve or file materials. She adjourned it to April 30, 2013 for one hour and directed the delivery of materials. Anticipating a motion by the Applicant mother, Wilson J. directed that the motion to set aside the order of Paisley J. was to be heard first. I am satisfied that the Respondent father brought the motion as soon as possible.

[28] The Respondent father takes the position that the Applicant mother failed to fully disclose in her evidence in support of the December 20th order that she was aware of circumstances which meant he was unable to comply with the November 29th order. He asserted that the Applicant mother knew that his commercial landlord had changed the locks on his office due to rental arrears just prior to the December 17th deadline. (He settled with the landlord on January 11th and moved to a new residence on February 1st.) The electricity to his residence had been cut off due to non-payment. The Applicant also knew that the Respondent father had lost the financial support of his uncle which had allowed him to access professional supervision. In view of the outcome of this motion, I need not determine whether the Applicant mother had an obligation to advise Paisley J. in her evidence as to what she knew about the circumstances of the Respondent father after the making of his order on November 29th. I do not set aside the order on account of material non-disclosure.

[29] As indicated above, the original order for disclosure dated July 6th required production by August 31st of records “from 2009 onward”. In her affidavit sworn April 24th, the Applicant mother listed the documents that had been produced none of which were later than August 2012. As his responding affidavit indicates, there appears to be an issue of interpretation of the original order in that he thought he needed to provide documents to the end of August 2012 while she thought it meant he had an ongoing obligation. That is a legitimate difference of opinion. Furthermore, there appears to be another legitimate difference of opinion as to the extent to which he had to produce back up documents. The Applicant mother also was critical of the Respondent father vis-a-vis the disclosure of the tax returns (which were required by the order) and notices of assessment (which were not required by the order). I am satisfied that the Respondent has advanced a plausible explanation for much of the default, that there are reasonable differences of opinion as to whether he was in default on some issues, and those explanations were not before Paisley J.

[30] In his financial statement and in his affidavit both sworn April 3, 2013, the Respondent father noted that he had paid child support regularly until and including June 2012. He explained the changes to his financial circumstances that meant he was unable to continue and he asked for another two months of reprieve from support payments to allow him to continue catching up on his expenses and consolidate payment arrangements with his creditors so that he could resume paying support regularly and without interruption. I am satisfied that the Respondent father has an arguable case that his pleading ought not to be struck out.

[31] There is no question that the Respondent father (a) has failed to fully comply with court orders for disclosure and payment of costs; (b) has failed to pay child support since June, 2012; (c) deceived Dr. Sutton and the Applicant mother and his uncle about the re-introduction of Rachel P. into his life when he knew the significance of that disclosure. I accept the evidence that the litigation conduct of the Respondent father has caused enormous stress to the Applicant mother and has substantially increased her legal expenses. Having said all of that, he is father to these children and they are entitled to have a relationship with him. Indeed the Applicant mother does not oppose him having a relationship with his children. There has been historical conflict about access but the Applicant mother wants him to have a relationship with the children. For the reasons explained at length in her affidavit sworn April 24th, she insists that it be supervised. If the Respondent father’s Answer as to financial issues remains struck out, he will lose the opportunity to advance his plausible explanation for his default and his arguable case for discretion to be applied to him. His un-remedied default will undoubtedly become a barrier to him seeking to have the case decided fairly to both parties.

[32] I am persuaded that the entire order dated December 20th, 2012 should be set aside.

Motion for access and temporary reprieve from payment of child support

[33] The notice of motion of the Respondent father also asks for an order that he have unsupervised access on Tuesdays and Thursdays from 5:00 p.m. until 8:00 p.m. and every other Saturday and Sunday from 10:00 a.m. to 1:00 p.m.

[34] I have not detailed the arrangements around access. Suffice it to say that after some challenges shortly after the separation, the Respondent father has regularly and frequently seen the children, albeit with a professional supervisor or family member present.

[35] In her affidavit sworn April 24th, the Applicant mother agrees that he should see the children but insists that it be supervised at this point. She said that she had agreed to using a supervised access centre and had been in touch with the centre regarding intake process. She has also agreed to access supervised by some of the Respondent’s family members including an aunt that had been in Toronto in April. At the point of that affidavit, visits had been scheduled for April 23rd and May 4th.

[36] In his affidavit sworn April 29th, the Respondent father explained that he has two aunts both of whom live in Vancouver and who had in the past visited Toronto only briefly. Although one of his aunts had planned to stay almost a month, only two visits were arranged. He continues to insist that the concerns raised by the Applicant mother do not justify ongoing supervised access. He emphasizes that while Dr. Sutton did not support unsupervised access, he did support it for “brief” periods of two to three hours.

[37] In paragraph 34 of his April 3rd affidavit, the Respondent father detailed Rachel P.’s current circumstances including that she had been his house guest for three weeks but she was moving into a new apartment “this month”. He admitted that he had no excuse for failing to advise Dr. Sutton that he had resumed contact with Rachel P. in the summer of 2012. He admitted to having made the wrong choice by failing to tell Dr. Sutton. Accepting that he made mistakes does not mean that the misgivings of the Applicant mother and Dr. Sutton as to his truthfulness and reliability are irrelevant.

[38] After hearing submissions on April 30th, I reserved decision until this date. I have no evidence on the issue of access after the affidavit of the Respondent father sworn April 29th. I am optimistic that supervised access has continued but I doubt it has been established in a regular routine. I am not prepared to make an order for unsupervised access beyond periods of 90 minutes under the conditions set out below. I am assuming that there is a park or a playground within walking distance of the school or the home of the Applicant mother and that, if pick up is at the school, the residence of the Respondent father is within walking distance. Given the time of year, those short unsupervised visits can take place outdoors as often as possible. I am assuming that father will be able to return the children at the end of these short unsupervised visits without driving a vehicle.

[39] I agree that changes to the access regime must be incremental. For that reason, I will maintain the supervised access component while accommodating the brief unsupervised periods to which Dr. Sutton had made reference. In addition, pursuant to rule 2(5), management of the case is required in order to create non-adversarial opportunities to canvass the obstacles to unsupervised access and to develop a plan to move to unsupervised access.

[40] In her affidavit, the Applicant mother also reiterates her belief that the Respondent father must pay child support. She said however, that she would be prepared to suspend child support for a period of time to permit him to use those funds to pay for continued supervised access in order that he could maintain his relationship with the children and give him time to rebuild the stability and trust that is necessary and in the best interests of the children.

[41] As indicated above, in his April 3rd affidavit, the Respondent father had asked for a reprieve of his financial obligations for two months. In his submissions on April 30th, he asked that he be given until the end of May to sort out his other financial obligations.

[42] In view of the Applicant mother’s willingness to forebear on child support and his request for a reprieve to the end of this month, I am satisfied that the Respondent father will now have the resources to provide for professional supervision in the short term and a supervised access centre can be avoided.

ORDER TO GO AS FOLLOWS:

[43] The motion by the Respondent father to set aside the order of Paisley J. dated December 20, 2012 is granted.

[44] The Respondent father shall have access as follows:

(a) As frequently as possible with supervision approved by the Applicant mother;

(b) Commencing no later than May 31st, 2013, at least twice each week for 90 minutes unsupervised provided that (i) the Respondent father shall, at the direction of the Applicant mother, pick up the children from their school or from their mother’s home and return them to the school or their mother’s home; (ii) the Respondent father shall not drive with the children.

[45] The obligation to pay child support is suspended until further court order.

[46] The Applicant wife shall not seek enforcement of the arrears of child support or of the outstanding costs orders without leave of the court.

[47] The Director of the Family Responsibility Office shall terminate enforcement steps until further order of the court.

[48] The parties shall attend a case conference before me on June 10th, 2013 at 2:30 p.m. with the following objectives:

(a) confirming the status of disclosure by the Respondent father (since the Applicant mother had not had an opportunity to respond to the contents of his April 29th affidavit); and

(b) developing a plan to progress to unsupervised access which will depend on the Respondent father achieving stability in his life as contemplated by Dr. Sutton.

[49] The Respondent father was successful in setting aside the order of Paisley J. and partly successful on the issue of access. However, it was his conduct that led to the order of Paisley J. and for that reason, he should not recover costs. There shall be no costs of this motion.

Kiteley J.

Date: May 27, 2013

[^1]: Murano v Murano 2002 CarswellOnt 3079; King v. Mongrain 2009 ONCA 486, [2009] O.J. 2466