COURT FILE NO.: FS-12-75097-00

DATE: 2013-11-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ADRIANO EDUARDO SCURCI

Martin C. Schulz, for the Applicant

Applicant

• and -

ANNA SCURCI

R. Avery Zeidman, for the Respondent

Respondent

HEARD: August 28 and September 11, 2013,

at Brampton, Ontario

Price J.

Reasons for Order

Nature of the motion

1Mr. and Ms. Scurci separated on September 1, 2008. Mr. Scurci did not begin this court proceeding until three years later, when the parties’ eldest son, Alessio, who is now 16, moved from his mother’s home to his father’s. Once the proceeding was begun, Ms. Scurci needed financial disclosure from Mr. Scurci in order to calculate his income for support purposes, and to calculate her entitlement, if any, to an equalization payment. She also required a professional assessment of the children’s needs, and counselling for Alessio, to determine whether pressure from Mr. Scurci, and possibly his alienation of Alessio’s affections for her, had caused Alessio to move to his father’s home.

2Mr. Scurci failed to provide the majority of financial disclosure that Snowie J.’s order dated October 19, 2012, made more than a year ago with both parties’ consent, ordered him to provide. Additionally, he failed to comply with the timetable that the parties agreed upon, and that Snowie J. imposed, for selecting and retaining an expert to assess the needs of the Scurcis’ two sons as they pertain to custody and access. As a result, the assessment, which was to have been completed in four to five months, has only just been completed, having taken twice as long as it should have. Ms. Scurci has therefore brought this motion to have Mr. Scurci found in contempt, and to have his pleadings struck, to permit her to proceed to an uncontested trial.

3On December 18, 2012, Tzimas J. made a further order, also with the parties’ consent, which re-affirmed and elaborated Snowie J.’s order. Although Ms. Scurci, in the interval, obtained an interim order for child support and spousal support from Wein J., and the assessment of the children is now complete, she argues that Mr. Scurci’s delay has prejudiced her to the point where it would be unfair to allow the matter to proceed to a contested hearing.

4Although originally scheduled to be heard December 18, 2012, Ms. Scurci’s motion to have her husband found in contempt was adjourned, at Mr. Scurci’s request, to March 4, so that it could be heard as a long motion. It was then further adjourned to August 28, 2013, again at his request, because his lawyer was unavailable on March 4. The motion was eventually heard, in part, on August 28 and was then further adjourned to September 11, 2013, when argument was completed and judgment was reserved.

Issues to be decided

5The court must decide the following issues in this motion:

1. Did Mr. Scurci willfully breach, or fail to comply with, the orders made on October 19 and December 18, 2012?

2. If so, what sanction is appropriate?

6The Court of Appeal for Ontario has cautioned against striking a parent’s pleadings in a proceeding involving custody and access issues. The court must determine whether this is an exceptional case in which that discretion should be exercised.

7Additionally, the court must determine what effect the delayed financial disclosure is likely to have on the fairness of the court’s ultimate determination of the financial issues, particularly support. This determination will require the court to examine the factors that the court will ultimately consider when dealing with Ms. Scurci’s claims for retroactive support, and when dealing with a potential argument by Mr. Scurci that he should not be required to pay accrued arrears.

Positions of the Parties

8Ms. Scurci argues that Mr. Scurci’s delay was calculated to maintain a status quo that was favourable to him, as the parties’ eldest son had come to reside with him, and to minimize the amount of support that Mr. Scurci pays her. She states that Mr. Scurci paid minimal support until the Family Responsibility Office (“FRO”) began garnishing his wages, with the result that over $60,000 in arrears have accrued. She asks the court to strike Mr. Scurci’s pleadings and to permit her to proceed to an uncontested hearing.

9Mr. Scurci argues that he has done his best to comply with the timetable the court established. He says that he negotiated a payment schedule that was acceptable to the assessor, and produced whatever documentation he has in his possession. He is willing to continue his efforts to secure the remaining documents from third parties who may be in possession of them. He denies that he has willfully breached the earlier orders of the court.

10It is now eleven months after Ms. Scurci brought her motion, and after five appearances in court on the motion, Mr. Scurci submits that his breaches of the earlier orders in relation to the assessment of the children delayed, but did not prevent, the assessment, which has now been completed, albeit five months late. He echoes the caution from the Court of Appeal that it is in the children’s best interests that both parents’ pleadings be heard.

11On the financial issues, it is not disputed that Mr. Scurci has not yet provided the required disclosure. He claims that the scope of the disclosure is unreasonably broad, although he consented at the time to an order requiring him to provide it. He proposes that the court now establish a fresh timetable for him to provide the disclosure that he was ordered to provide almost a year ago.

12Ms. Scurci submits that the steps that Mr. Scurci proposes to take, while they may have been adequate had they been taken in a timely manner, would now be inadequate and unfair. She has already been prejudiced by the long delay of the children’s assessment, by the prolonged status quo that it caused, and by the delayed financial disclosure, which has reduced the likelihood that she will ever fully recover the support that she and the children are owed.

Background facts

13Mr. and Ms. Scurci were married on August 26, 1989. They have two children together, Alessio Antonio Scurci, who is now 16 years old, and Matteo Massimo Scurci, who is 14.

14Mr. and Ms. Scurci separated on September 1, 2008. Mr. Scurci left the matrimonial home, which was in Mississauga, and re-located to Orillia.

15Initially, Alessio and Matteo remained with their mother in the matrimonial home. In October 2011, the eldest son, Alessio, moved out of the matrimonial home to stay with a friend. He later moved in with Mr. Scurci.

History of the proceeding

16On May 25, 2012, Mr. Scurci began the present proceeding by an Application in which he claimed a divorce, custody of Alessio and Matteo, and child support, equalization of net family property, exclusive possession of the matrimonial home and its contents, and sale of the home.

17Mr. Scurci delivered a Financial Statement sworn May 25, 2012. In it, he stated that he was employed by Acuren Group Inc., where he earned $63,000 per year. He claimed annual expenses of $76,524. The accompanying Notice of Assessment for 2010 disclosed that his line 150 income that year was $63,019. A 2011 Tax Summary disclosed that his net employment earnings had by then increased to $92,175.03.

18Ms. Scurci delivered her Answer on July 3, 2012. In it, she claimed the same relief that Mr. Scurci had claimed, as well as spousal support for herself. In her Financial Statement sworn June 28, 2012, she stated that she was employed by the Dufferin Peel Catholic District School Board, where she earned $54,560.16. Her Notice of Assessment for 2011 records that her Line 150 income that year was $49,535.

19In her Answer, Ms. Scurci requested the following additional remedies:

1. A temporary and final order requiring the Applicant husband to pay child support based on the Applicant’s true income, with income to be imputed to the Applicant, if applicable, in accordance with the Child Support Guidelines for both the table amount and special or extraordinary expenses, retroactive to the date of separation, and binding upon the husband’s estate, to be secured by a charge of the husband’s property or otherwise.

2. An order for a psychological assessment of the children and/or Alessio, together with ongoing counseling to assist with reversing the campaign of parental alienation instituted by the applicant and to assist the children and/or Alessio in adapting to the stress created by the lengthy and now increasingly acrimonious marital breakdown.

3. A temporary and final order for spousal support in accordance with the Spousal Support Advisory Guidelines (periodic, lump sum, and compensatory) retroactive to the date of separation, and binding upon the husband’s estate, to be secured by a charge of the husband’s property or otherwise.

4. An order for full and complete financial disclosure by the husband and an accurate accounting of all income and property by sworn Financial Statement in which the husband has or had an interest, direct or indirect, as of the date of marriage, the date of separation, the current date, and as of the date of trial. In addition to the foregoing, full and complete financial disclosure by the husband with respect to all corporations in which he is or was a shareholder and all businesses in which he is or was an owner at any material time. [Emphasis added.]

20On October 19, 2012, a case conference was held before Snowie J. At that time, a consent order was made for an assessment of the children by a professional to be agreed upon by the parties by October 31, 2012, or to be appointed by the court, and to be paid for by Mr. Scurci, to determine the best interests of the children with respect to their residence and access arrangements.

21Snowie J.’s order granted the parties leave to bring motions and required them to deliver requests for information by October 31, 2012, to deliver the disclosure requested within two weeks after that, and to exchange their calculations/position with respect to retroactive child and spousal support within two weeks after receipt of their further disclosure. It required Mr. Scurci to make without-prejudice monthly payments in the amount of $425 to Ms. Scurci, pending further order by the court, to be credited to the support arrears.

22Mr. Scurci failed to comply with Snowie J.’s order and Ms. Scurci made a motion, to be heard December 18, 2012, for disclosure, to have Mr. Scurci found in contempt, and to have his pleadings struck. When Mr. Scurci’s counsel argued that the motion would require more than an hour to argue and requested an adjournment to a long motion date, the parties consented to an order by Tzimas J. adjourning the motion. That order required Mr. Scurci to complete and file his Intake Form with Dr. Ted Horowitz, the expert the parties had selected to conduct the assessment of the children, by December 21, 2012, and required Ms. Scurci to do the same by January 11, 2013. Additionally, the order required Mr. Scurci to pay Dr. Horowitz’s initial retainer of $14,000 plus HST by January 11, 2013.

23Tzimas J.’s order further required Mr. Scurci to deliver his response to Ms. Scurci’s Request for Information and disclosure by December 21, 2012. It required him to produce any documents that were in his possession by January 11, 2013, and, if any of the documents were not produced, to provide, by that date, a detailed explanation as to why they were not produced. If documents could not be produced by January 31, 2013, because they were in the possession of non-parties, Mr. Scurci was to advise Ms. Scurci’s counsel of their status and write follow-up requests to the non-parties, with copies to Ms. Scurci’s counsel. The remainder of Ms. Scurci’s motion was adjourned to March 4, 2013, to be heard as a long motion.

24In the meantime, Mr. Scurci relocated from Orillia back to Mississauga, where he rented accommodation close to the matrimonial home. At some point, Alessio moved in with him. Mr. and Ms. Scurci disagree as to whether this occurred in August or on September 7, 2012. Initially, Alessio saw his mother on alternate weekends, but by September 11, 2013, he was seeing her less frequently. The Scurci’s youngest son, Matteo, began alternating his residence between his parents on a week-about schedule in September 2012.

25At the scheduled long motion hearing date of March 4, 2013, Mr. Scurci’s counsel, Mr. Schulz, sent an agent, Mr. Fordjour, who advised the court that Mr. Schulz had an ongoing trial before Daley J. and required an adjournment of Ms. Scurci’s motion. Ms. Scurci’s counsel asked the court to find Mr. Scurci in contempt for failing to pay Dr. Horowitz’ initial retainer of $14,000 by January 11, 2013. Mr. Fordjour advised that the assessment of the children had begun and that, while Mr. Scurci lacked the financial means to retain Dr. Horowitz fully by January 11, Mr. Scurci and Dr. Horowitz had agreed to an arrangement whereby Mr. Scurci would make regular payments to Dr. Horowitz.

26Based on the information that Mr. Fordjour provided, André J. declined to find Mr. Scurci in contempt at that time, “given that he should be afforded an opportunity to have his counsel make representations on his behalf regarding whether or not he has breached a court order.” André J. ordered Mr. Scurci to pay the assessor fully within 60 days and adjourned the balance of the motion to August 28, 2013, the next available long motion date.

27Ms. Scurci made a further motion, heard by Wein J. on May 16, 2013, for ongoing and retroactive child support and spousal support. In her endorsement dated May 27, 2013, Wein J. stated: “This application deals only with the period from January 2012 to the present time.” The endorsement further states that “Issues related to support during the period prior to September 2012 will, on agreement, be dealt with on the final resolution of the issues by the parties.” This is clearly a typographical error. As Wein J. had indicated earlier in her endorsement, the application before her was for support from January 2012 onward, and her order provided for support for that period, so her endorsement should have stated that issues related to support prior to January 2012 would be dealt with at trial.

28Wein J. noted that Mr. Scurci’s T4 form for 2012 disclosed that his income that year was $88,216.93, but that he had also received a “living out” allowance of $43,723, which increased his income to $143,111.24. Mr. and Ms. Scurci took opposing positions as to how the living allowance should be treated for purposes of support. Mr. Scurci argued that it should not be included in his income at all. Ms. Scurci argued that it should be included fully, and grossed-up, as it was not taxed. Wein J. included approximately $35,000 of the allowance in Mr. Scurci’s income, imputing to him a total income of $125,000.

29Given that Ms. Scurci had been living mortgage-free in the matrimonial home, to which Wein J. attributed a value of $500.00 per month, Wein J. ordered Mr. Scurci to pay child support in the amount of $1,721 per month from January to August 2012 when Alessio had moved in with his father, and spousal support in the mid-range amount of $1,061 per month. She reduced the amount of child support payable to $340 per month from September 2012, and increased the spousal support payable from that date to $1,355.

30Wein J.’s order directed the parties to calculate the retroactive support owing to Ms. Scurci based on the child and spousal support amounts she had fixed, and ordered Mr. Scurci to pay Ms. Scurci $10,000 of the retroactive amount by June 30, and the balance before August 28, 2013, when the long motion was to be heard. After reserving the costs of the motion, Wein J. made a further order on July 12, 2013, requiring Mr. Scurci to pay Ms. Scurci’s costs of the motion in the amount of $7,500.

31I heard Ms. Scurci’s motion in part on August 28, 2013, and adjourned the balance of the argument to September 9, 2013. After a brief further adjournment on that date, the argument was concluded on September 11, 2013. At the conclusion of the hearing, Mr. Scurci still had not complied fully with the orders that the court had made previously. In particular:

1. He failed to respond to Ms. Scurci’s proposals for the selection of an assessor by October 31, 2012, and to provide financial disclosure by that date.

2. He failed to respond to Ms. Scurci’s request for information by November 14, 2012.

3. He failed to pay the full amount of the retainer required by Dr. Horowitz by January 11, 2013, as Tzimas J. had ordered on December 18, 2012, when the present motion was first to be heard.

4. He failed to produce 7 of the 12 items that Ms. Scurci had sought to be disclosed by January 11, 2013, and which he had agreed on December 18, 2012, to produce by that date.

5. He failed to pay the balance of Dr. Horowitz’ retainer by May 4, 2013, as Andre J. had ordered on March 4, 2013.

6. He failed to pay $10,000 of the retroactive support by June 30, 2012, or to pay the balance by August 28, 2013, as ordered by Wein J. on May 27, 2013.

7. He failed, until after the adjournment of the motion on August 28, 2013, to pay Ms. Scurci her costs of $7,500, as Wein J. had ordered on July 12, 2013.

32As of July 1, 2013, almost five years after the parties separated, Mr. Scurci had paid only $1,500 in support. He paid the $7,500 costs ordered by Wein J. only on the eve of the hearing on August 28, 2013.

33With regard to his failure to pay Dr. Horowitz’s retainer, Mr. Scurci submitted that Dr. Horowitz began his assessment of the children by the end of February 2013, and that, as of the date of the hearing of this motion on September 11, 2013, he was nearing completion of it.

34With regard to his failure to provide disclosure, Mr. Scurci submitted that he and Ms. Scurci had exchanged correspondence regarding the disclosure issues arising from the order dated December 18, 2012. At the hearing on September 11, 2013, he proposed that a new order be made, giving him a fresh timetable for making the disclosure that he had been ordered to provide almost a year earlier.

Analysis

Findings of Fact

35The evidence, which is clear and unequivocal, satisfies me beyond a reasonable doubt that Mr. Scurci willfully breached the order of Snowie J. by failing to respond to Ms. Scurci’s choice of assessor, by failing to pay the assessor’s full retainer, and by failing to produce the information and documents that Ms. Scurci had requested. Further, he willfully breached the order of Tzimas J. by failing to pay the assessor’s retainer fully by the date ordered, and by failing to produce the financial disclosure as required.¹

a) Intentional breach of the orders for assessment of the children

36Mr. Scurci repeatedly delayed, in the ways set out below, the assessment of the children, and thereby maintained the status quo that arose when Alessio went to live with him, thereby giving Mr. Scurci a strategic advantage in the proceeding.

37Ms. Scurci argues that Alessio’s decision to move in with his father was prompted by alienating conduct on the part of Mr. Scurci. Mr. Scurci denies this. Whatever Alessio’s motivation was, Ms. Scurci was entitled to have the issue investigated promptly, in accordance with the timetable set out in Snowie J.’s Order.

38Mr. Scurci’s counsel did not communicate his client’s choice of assessor by October 1, 2012, as required by Snowie J.’s Order. He did not respond to letters that Ms. Scurci’s counsel sent to him on November 7, 13, and December 6, 2012, requesting his response before November 19, 2012, when the parties were required to file the expert’s name with the court.

39Mr. Scurci did not pay Dr. Horowitz’s retainer by January 11, 2013, as required by Tzimas J.’s consent order dated December 18, 2012, or by May 4, 2013, as required by André J.’s order dated March 4, 2013. Dr. Horowitz’s assistant confirmed by e-mail dated February 21, 2013 that Mr. Scurci had by then paid only 50 per cent of the initial retainer. He paid only $2,000 in early January and a further $5,000 on January 20.

40Instead of paying the full amount of the retainer as required, Mr. Scurci stated that he would pay $1,000 every other week. The assistant wrote: “Since we did not have the 50% of the initial retainer until yesterday, January 20th, 2013, the assessment is starting next week.”

41I find that the financial arrangement Mr. Scurci made with Dr. Horowitz delayed the commencement of the assessment and slowed down the assessment, as meetings were apparently scheduled to keep pace with the payments Mr. Scurci was making. As a result, the assessment, which was to have required four to five months, has only just been completed.

b) Prejudice caused by the delayed assessment of the children

42I find that Mr. Scurci’s failure to comply with the Orders in respect of the assessment of his children prejudiced Ms. Scurci in relation to the custody and access issues. The assessment, which should have begun by mid-January 2013, and been completed four to five months later, as originally estimated, was delayed and was not completed seven months later. In the meantime, the status quo continued.

43Mr. Scurci failed to facilitate, participate in, or encourage counselling for Alessio, who continued to reside with him, and for Matteo, who resides with him on alternate weeks, as was required by Snowie J.’s order dated October 19, 2012. Instead, he stated that the children would decide for themselves whether they would attend counselling. I find that Mr. Scurci’s failure to comply with the order, both with regard to the assessment and the counselling, was calculated to perpetuate the status quo and Alessio’s residence with him.

c) Intentional breach of the orders requiring financial disclosure

44I further find that Mr. Scurci willfully failed to produce the financial disclosure that Ms. Scurci required, as ordered by both Snowie J. and Tzimas J. Mr. Scurci failed to produce the following documents as required:

1. his tax returns, with all schedules and attachments, for the years 2005 to the present;

2. his bank statements and credit card statements from 2005 to the present;

3. the receipts or invoices for the payments to third parties for which he seeks credit in the calculation of his child support;

4. his applications for credit, including car loans, lines of credit, and credit cards;

5. his e-mails and correspondence with Ms. Scurci and the children from 2008 to the present;

6. his employer’s benefit packages from 2008 to the present;

7. documentation of his liability for taxes and pension on the date of separation for which he claims credit in the calculation of his net family property;

8. the clinical notes and records of the doctors who have treated him for depression and other conditions relevant to his parenting ability;

9. his mother’s Will, the application and certificate of appointment of her estate trustee, and the trust statements and reports for the inheritance he received from his mother in 2007;

10. his pay stubs from the date of separation;

11. his leases from the date of separation;

12. the documentation for his defined benefit pension;

13. his insurance policy with London Life.

45If Mr. Scurci was unable to produce these documents by January 31, 2013, because they were not in his own possession, Tzimas J.’s order dated December 18, 2012, required him to follow up with a letter to Ms. Scurci’s lawyer, advising him of the status of the productions, and further required him to make follow-up requests in writing to the third parties, with copies to Ms. Scurci’s lawyer. He failed to do this. He should also have given Ms. Scurci’s lawyer directions to the following third parties, authorizing them to produce the records directly to Ms. Scurci and her lawyer:

1. Canada Revenue Agency, for his tax records;

2. The banks and credit card companies, for his applications for credit and their monthly statements;

3. The recipients of payments he made for the children, for documentation of the payments;

4. His employer, for his paystubs;

5. His pension administrator, for his pension statements;

6. His mother’s estate trustee, for her Will and estate documentation;

7. His physicians, for their clinical notes and records;

8. His landlords for his leases;

9. London Life, for his insurance policy.

46There is no dispute as to Mr. Scurci’s failure or refusal to provide the disclosure required. In his factum, Mr. Scurci asks the court to consider whether the request for these records is unreasonable or disproportionate. In consenting to the orders of Snowie J. and Tzimas J., Mr. Scurci acknowledged the reasonableness of the requests and the relevance of the records. It is no answer to Ms. Scurci’s complaint that Mr. Scurci failed to comply with the orders for him to assert that the requests were not reasonable in the first place.

47Mr. Scurci’s conduct, including his breaches of the previous court orders, discloses a strategy calculated to minimize the support he pays to Ms. Scurci. He paid only $1,500 in support until just before the hearing of this motion, when the FRO began enforcing Wein J.’s order by garnishing his wages. His explanations, (a) that he did not pay a greater amount of support before Wein J. made her order because the amount of his obligation had not yet been quantified, and (b) that he did not pay the amount Wein J. ordered, because he was waiting for the FRO to begin enforcement, are unconvincing and untenable in law.

48The Family Responsibility & Support Arrears Enforcement Act makes provision for the delays in the deduction of support payments by the income source (that is, by garnishment of Mr. Scurci’s wages from his employer):

22(3) Until an income source begins deducting support payments in respect of a support deduction order or if payments by an income source are interrupted or terminated, the payor shall pay the amounts owing under the support order to the Director, if the support order is filed in the Director’s office, or to the recipient, if the support order is not filed in the Director’s office.² [Emphasis added.]

49Mr. Scurci failed to pay the required amounts to the Director, as the Act requires.

d) Prejudice caused by the failure to make financial disclosure

50Mr. Scurci’s failure to produce his financial records, especially those that disclose how his living allowance was calculated, and what his actual expenses were, have prejudiced Ms. Scurci by preventing her from proceeding to trial where she could seek a timely variation of her support based on more complete evidence as to Mr. Scurci’s income.

51The court generally includes in a payor spouse’s income for support purposes only that portion of a “living allowance” or “relocation allowance” that exceeds actual expenses incurred.³ In determining the amount of Ms. Scurci’s interim support, Wein J. imputed an amount of income to Mr. Scurci that included only a portion of his annual “living-out allowance” of $43,000. It is evident from Wein J.’s endorsement dated May 27, 2013, that she had limited evidence as to how the living-out allowance was calculated, and as to what Mr. Scurci’s actual expenses were. It is evident from her endorsement that she expected the amount of income she imputed to Mr. Scurci to be varied at trial based on the additional evidence that would be forthcoming from him. She stated:

In most cases dealing with the issue of grossing up of income on the basis of a non-taxable allowance, the issue has been determined at trial. In those circumstances, more information is available concerning the actual use of the allowance money so that the added benefit if any can be determined. In most cases, the money is a reimbursement for actual costs such as the maintenance of a second home close to work, a living allowance for more expensive costs of living in a particular area, or an offset of extra driving required to return home. In some cases, the legitimate additional expenses were determined to be recovered by not grossing up the pay for income taxes. The cases have been recently reviewed in the decision in Arnott v. Arnott, 2012 ONSC 1822, at paragraphs 35 to 43.

In this case it does appear that the father does not maintain a secondary residence in Orillia where he works, in part because he rented a second house in Mississauga in order to accommodate the older son’s moving in with him. Still, he will have driving expenses and some additional food and possibly winter accommodation expenses….

On the basis of the limited information available to me, it seems probable that some of this accommodation allowance would property be included in income. Giving rough consideration to the other factors involved, including the tax consequences and the benefit of living in the matrimonial home, I find that on this interim order the support should be based on an imputed or assumed income to the father of $125,000.00. [Emphasis added.]⁴

52Mr. Scurci’s failure to provide the financial disclosure that was required of him prejudiced Ms. Scurci’s ability to establish his income for purposes of calculating her entitlement to support and her ability to establish his assets for the purpose of calculating her entitlement to an equalization payment. In particular:

a) His failure to produce his tax returns, bank statements, and credit card statements for the years 2005 to the present, and his applications for credit, pay stubs, and leases from the date of separation, prejudices Ms. Scurci’s ability to establish his income from the date of separation to the end of 2011, and the portion of his living allowance that is offset by actual expenses he incurred.

b) His failure to produce his employer’s benefit packages from 2008 to the present prejudices her ability to establish what benefits should be included in his income.

c) His failure to produce his receipts or invoices for the payments to third parties for which he seeks credit in the calculation of his child support prejudices Ms. Scurci’s ability to challenge the payments he claims to have made.

d) His failure to produce his e-mails and correspondence with Ms. Scurci and the children from 2008 to the present prejudices Ms. Scurci’s ability to establish her claim that he alienated Alessio and sought to alienate Matteo from her.

e) His failure to produce the clinical notes and records of the doctors who have treated him for depression and other conditions prejudices Ms. Scurci’s ability to establish untreated conditions that may be relevant to Mr. Scurci’s parenting ability.

f) His failure to produce records of his tax liability and pension on the date of separation, the Will, trust statements, and reports for the inheritance he received from his mother in 2007, and his pension documents prejudices Ms. Scurci’s ability to establish the value of his assets. Additionally, his failure to produce these documents prejudices her ability to challenge his claim for credits in the calculation of his net family property.

g) His failure to produce his life insurance policy with London Life prejudices her ability to seek the appropriate order for security for his support obligations.

Legislation

53Rule 14(23) of the Family Law Rules governs compliance with orders made at motions and explicitly empowers the court to strike a party’s pleadings:

14.(23) A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out … any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs.⁵ [Emphasis added.]

54Rule 19(10) governs compliance with orders requiring disclosure. It similarly empowers the court to strike a party’s pleadings:

19(10) If a party does not follow this rule or obey an order made under this rule, the court may, on motion, do one or more of the following:

1. Order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

2. Order that a document favourable to the party’s case may not be used except with the court’s permission.

3. Order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.

4. Dismiss the party’s case or strike out the party’s answer.

5. Order the party to pay the other party’s costs for the steps taken under this rule, and decide the amount of the costs.

6. Make a contempt order against the party.

7. Make any other order that is appropriate. [Emphasis added.]

55Rule 31(5) sets out the powers a court may exercise when it finds a person in contempt, including imposing penalties, requiring compliance, or forbidding a continuation of the contempt:

31(5) If the court finds a person in contempt of the court, it may order that the person,

a) be imprisoned for any period and on any conditions that are just;

b) pay a fine in any amount that is appropriate;

c) pay an amount to a party as a penalty;

d) do anything else that the court decides is appropriate;

e) not do what the court forbids;

f) pay costs in an amount decided by the court; and

g) obey any other order.⁶

56Rule 2 provides guidance as to how the Family Law Rules as a whole should be interpreted. It provides, in part:

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost.[Emphasis added.]

57Ms. Scurci submits that her husband’s delay tactics have resulted in the accumulation of $60,000 arrears of support. While the issue of arrears is not directly before me, Ms. Scurci’s complaint focuses on Mr. Scurci’s underlying motivation for breaching the previous court orders and the way in which his breaches have prejudiced Ms. Scurci. These are factors I have considered in determining what remedy is appropriate in the circumstances.

h) Prejudice caused by delayed and incomplete financial disclosure

58When the court is delayed in its determination of how much support should be paid, the issue of retroactivity complicates and may compromise the recipient spouse’s claim. Further, when a payor delays paying support that the court has ordered, and arrears accrue, a new issue arises as to whether requiring the payor to pay the arrears is appropriate. This determination entails consideration of whether enforcing the order would result in financial hardship to the payor, or whether not doing so would result in financial hardship to the recipient or the child.

59Delay in the payment of support that the court has ordered be paid undermines the integrity and effectiveness of support orders. It brings the recipient’s entitlement, which has already been adjudicated upon, into doubt once again if the payor seeks to rescind the arrears on the ground of financial hardship.

60It is necessary to distinguish between the effect that Mr. Scurci’s delayed disclosure and non-payment are likely to have on the determination of Ms. Scurci’s claims for retroactive support and on her ability to collect the arrears that have accrued. The court considers different factors in each determination, and distinguishing between them will clarify how Mr. Scurci’s delay is likely to prejudice Ms. Scurci in relation to each determination.

i. Factors considered when determining a claim for retroactive support

61In D.B.S. v. S.R.G., (2006),⁷ the Supreme Court of Canada comprehensively addressed how the court should determine claims for “retroactive child support.” Bastarache J. began his majority reasons by pointing out that the word “retroactive” in relation to child support is a misnomer, because such support sought is only retroactive in the sense that it had not been ordered to be paid during the relevant period, even though it was owed in accordance with the Guidelines. Before discussing the factors a court was to consider prior to ordering retroactive child support, he stressed that such awards should not be seen as exceptional. He stated:

It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability [for the payor parent], but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.⁸ [Emphasis added.]

62Bastarache J. identified four factors that the court should consider when determining whether to order a retroactive award:

(1) unreasonable delay by the recipient parent in applying for the support;

(2) conduct of the payor spouse;

(3) circumstances of the child; and

(4) hardship occasioned by the retroactive award. [Emphasis added.]

He further indicated that none of these factors is decisive, and that “a court should strive for a holistic view of the matter and decide each case based on its particular factual matrix”.⁹

63Bastarache J. concluded:

The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.¹⁰

64In Malleye v. Brereton, (2007), Clark J. of the Ontario Court of Justice applied the principles from D.B.S. in a case where the moving party sought a retroactive reduction of child support and rescission of arrears. He stated:

The recent case of D.B.S. v. S.R.G. sets out the relevant factors when considering a retroactive increase in child support as follows:

1. Delay in seeking retroactive support

2. Conduct of the payor

3. Circumstances of the child

4. Hardship for the payor

The court is of the view that these same factors apply when a party is applying for a retroactive decrease in child support.¹¹

65Zucker J., in Cole v. Freiwald and Freiwald, (2011), stated that Robertson J.A.’s distinction in his reasons on behalf of the New Brunswick Court of Appeal in Brown v. Brown, (2010), between an application to reduce support and rescind arrears and a judicial refusal to enforce arrears¹² is important because, once arrears have been rescinded by court order, they cannot later be reinstated.¹³ Robertson J.A. noted that the husband had moved for a retroactive reduction or termination of arrears of child support and spousal support totalling $132,965, accrued since 2004. Robertson J.A. found no error in the motion judge’s rescinding the arrears of child support accrued when the child resided with the husband. However, he found merit in the husband’s argument that the motion judge had erred by narrowing the remaining issue to whether the support arrears should be reduced or eliminated because of the wife’s failure to pursue timely enforcement.

66Robertson J.A. acknowledged that D.B.S. deals with child support, but perceived “no valid policy reason for distinguishing between child and spousal support when it comes to the retroactive variation of arrears” because “the need for the distinction evaporates once it is accepted that delay in enforcement (the notion of fault) is no longer a relevant consideration when it comes to retroactive orders involving a decrease in support.”¹⁴ As Zucker J. noted in Cole, failing to distinguish between child support and spousal support runs contrary to case law elsewhere in Canada, which suggests that child support arrears are less likely to be rescinded, because parents cannot waive their child’s right to support and the conduct of a parent should not prejudice the child’s rights.¹⁵

67He suggests, however, that treating applications for retroactive decreases in support differently than applications for retroactive increases could be justified on the basis that the latter do not involve a request that a recipient pay or repay money that he or she may or may not have by the time the variation application is heard. In proceedings to reduce child support retroactively, or to reduce or rescind arrears, on the other hand, once a material change in circumstances is established, the only question is whether a reduction, either retroactive or ongoing, is appropriate in light of that change.¹⁶

68Zucker J. stated, in Cole:

…Behaviour that indicates wilful non-compliance with the terms of the order or failure to work co-operatively to address the child support issue is a factor that militates against even partial rescission of or reduction of arrears.¹⁷

69In D.B.S., Bastarache J. noted that the cases under appeal in that case did not concern the payment of arrears.¹⁸ He cautioned that the factors he set out (why support was not sought earlier; conduct of the payor parent; circumstances of the child; and hardship occasioned by a retroactive award) were not meant to apply to accrued arrears, where there was, by virtue of the existing order or agreement, certainty and predictability with respect to the payor’s obligations.

70The Alberta Court of Appeal in Haisman v. Haisman, (1994), stated, with regard to arrears:

The mere accumulation of arrears and current inability to pay child support arrears, without evidence of a change in circumstances while the arrears accumulated that affected the payor’s ability to pay when the support came due, is not a change in circumstances that will meet the threshold requirement for a variation application and is not, in and of itself, a special circumstance that will justify a rescission or reduction of arrears of child support. This situation may, however, justify a suspension of enforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears.¹⁹

71The reasoning of the Alberta Court of Appeal is entitled to special weight in light of the Supreme Court’s refusal of leave to appeal from the decision. Mr. Scurci would face its reasons if he sought an order rescinding the arrears that have accrued owing to his failure to make timely payment of the support that Wein J. ordered him to pay for the period from January 1, 2012 to the present.

72Shortly after the Supreme Court of Canada refused leave to appeal in Haisman, the Ontario Court of Appeal in Filipich v. Filipich, (1996),²⁰ considered the factors the court should consider when determining an application to reduce or eliminate child support arrears. In that case, the court was asked to consider whether all or part of child support arrears that had accumulated under a decree of divorce could be cancelled and, if so, whether there was a rule precluding the enforcement of such arrears beyond one year.

73In Filipich, it is not clear whether the application was based on a change in circumstances when the arrears accrued, or on the payor’s current inability to pay. The court held that there was no “one-year rule” restricting enforcement of child support, but that the court had discretion to restrict the extent to which it would enforce payment of such arrears. It found that there was no fixed formula for determining how this discretion should be exercised but held that the relevant factors included those the High Court had set out in Gray v. Gray, (1983).²¹ In Gray, the payor who applied for rescission of arrears had been able to pay when the arrears accrued but refused to do so. The court held that, in that situation, the court should typically give effect to the existing order, unless there are compelling reasons not to do so.

74In DiFrancesco v. Couto, (2001),²² the Court of Appeal, citing Gray, stated that a court may consider the following factors when determining a payor’s application to rescind arrears:

(1) the nature of the obligation to support, whether contractual, statutory or judicial;

(2) the ongoing financial capacity of the respondent spouse;

(3) the on-going need of the custodial parent and the dependent child; . . .

(4) unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;

(5) unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and

(6) where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief, where deemed appropriate.²³ [Emphasis added]

75The Court in DiFrancesco held that the payor’s “apparent failure to make any voluntary efforts at compliance is a factor that militates against even partial rescission of arrears at this time. Willful non-compliance with the terms of a support order should not be condoned or rewarded by the court.”²⁴

76Gray, Filipich, and DiFrancesco, were all decided before the Supreme Court in D.B.S. articulated the test to be applied in applications for retroactive increases in child support. In Adamson v. Steed, (2006),²⁵ Herman J. reviewed the jurisprudence since D.B.S. that distinguished between applications to increase support retroactively and applications to reduce support retroactively and to rescind arrears. She noted that in Morgan v. Morgan, (2006), the B.C. Supreme Court had applied a different set of factors when determining whether to rescind arrears from those it applied when determining whether retroactive support was warranted.²⁶ She further noted that the Saskatchewan Court of Queen’s Bench in Lavoie v. Tisserand, (2006),²⁷ while noting that D.B.S. involved an application for retroactive child support, had applied its reasoning to an application to reduce such support retroactively and to rescind arrears based on a decrease of the payor’s income, applying a three-year cap to the arrears, as the court in D.B.S. had done for the retroactive increase in that case.

77In Adamson, the payor father’s obligation derived from a separation agreement negotiated over a period of time, which the parties, each with independent legal advice, had understood when they signed it. The father’s income had not decreased and the agreement was never varied and remained in effect during the years when arrears accrued. Herman J. held that while the court determining an application to rescind arrears should consider the recipient’s delay in applying, it should weigh this factor differently than it does when considering an application for retroactive support:

While delay is a factor in considering whether arrears should be rescinded, it should, in my opinion, be weighed differently than in a situation of retroactive support. As noted by Bastarache J. in D.B.S., the key difference between retroactive support and arrears is that in the case of arrears, the payor has notice of his or her obligations. ²⁸ [Emphasis added.]

[78]

79After calculating the father’s arrears, Herman J. considered whether they should be rescinded. She considered the ongoing need of the mother and dependent child, and the ongoing ability of the father to pay. She then considered the twelve year delay from when the cost of living increases began to accrue until the time when the mother applied for the arrears.

[80]

81Herman J. concluded, regarding the delay:

While Ms. Adamson may not have specifically pointed out the provision in the separation agreement requiring cost-of-living increases, Mr. Steed understood his obligations under the separation agreement when he signed them. Ms. Adamson was not obligated to point those obligations out to him. … Therefore I conclude that Mr. Steed had notice of his obligations, by virtue of the separation agreement and Ms. Adamson’s frequent requests for financial assistance.²⁹ [Emphasis added]

82In Vanbeek v. Vanbeek, (2008), Kent J. heard a father’s application for a retroactive reduction of child support in a final order made by Whitten J. in 2004 after a summary trial where he had found that the father earned $67,000. Kent J. found that the father’s income had since decreased to $25,000, which amounted to a material change in circumstances within the meaning of s. 37(2) of the Family Law Act, and s. 17(4.1) of the Divorce Act. He reduced the child support to the guideline amount for 3 children based on the father’s new income, with effect from June 1, 2006, when the father’s income had declined. He rescinded only the arrears (above the amount of the new support) that had accrued since the application to vary was brought. In refusing to rescind the arrears that had accrued before that date, he stated:

While the wording of s. 17(4.1) of the Divorce Act differs from s. 37(2) of the Family Law Act, neither permits the court, when considering a variation, to order a variation retroactive to a date before the subject order was made. It may be that greater latitude is available to the court, and a result similar to that sought by counsel for the respondent could be obtained, by rescinding arrears that accumulated on both the interim and final orders. This point, however, was before Gordon, J. in Plotz v. Boehmer-Plotz [2004] O.J. No. 587. He found that the matter of arrears could have been raised and considered in an earlier application and that the doctrine of res judicata applied to matters litigated as well as matters that should have been raised…. It seems, therefore, that this court should not go behind the order of Whitten, J. either to fix an effective date for the termination of spousal support or to rescind arrears.³⁰

83In Fournier v Broatch, (2010), Ray, J. distinguished D.B.S. on the ground that it had involved a claim for retroactive support. He declined to rescind arrears of approximately $6,000 that had accrued as a result of the father’s failure to produce his income tax information and adjust his support payments as the parties’ separation agreement required him to do. He stated:

Here, the parties entered into an agreement that he would annually provide his income tax return. He knew the guidelines and agreed to make payments in accordance with the guidelines, but failed to do either for seven years. D.B.S. dealt with claims for retroactive support. This is not such a claim. It is for arrears, namely amounts that had agreed to be paid according to the respondent’s annual income and according to the guidelines. The respondent seems to suggest that the applicant should have to annually resort to litigation to get him to do what he had already agreed in writing to do. I don’t consider that D.B.S. stands for that proposition. In any event the applicant is only seeking three years of arrears.³¹ [Emphasis added.]

84I conclude, based on the above jurisprudence, that Mr. Scurci’s delay is likely to prejudice Ms. Scurci’s claim for retroactive support. The trial judge will be required to consider any financial hardship that Mr. Scurci would suffer at the time of trial if an order for retroactive support is made. An argument by Mr. Scurci to rescind his accrued arrears is unlikely to prevail, but even this would depend on whether the trial judge finds that Mr. Scurci caused the delay in the enforcement of Wein J.’s Order. The trial judge could rescind arrears if a decline in Mr. Scurci’s income between the time when the order was made and the time of trial warrants a retroactive reduction of support. In either event, the delay increases the complexity of the argument and the uncertainty of the outcome.

85I further find that Mr. Scurci’s delay in providing disclosure and paying the support he was ordered to pay prejudiced Ms. Scurci because she and the children were deprived on the support they were entitled to receive when the order of Wein J. required it to be paid, and to any increase of the support that a trial judge may have made if the trial had taken place in a timely manner. As a result of the delay Ms. Scurci has had to live a more limited lifestyle for five years, and has been limited in the resources she could provide for the children. Those years cannot be returned to her or the children, and their deprivation cannot be fully remedied at the eventual trial.

a) Judicial Restraint

i. The Power to Punish a Litigant for Contempt

86The remedy of contempt should not be granted in family law cases where other adequate remedies are available.³² Additionally, as the Court of Appeal noted in Forrest v. Lacroix, (2000), orders for the payment of money cannot be enforced by contempt proceedings under Rules 60.02, 60.05, 60.11(1) of the Rules of Civil Procedure.³³. In Murano v. Murano, (2002),³⁴ the Court of Appeal held that its reasoning in Forrest applies equally to proceedings governed by the Family Law Rules.

87Mr. Scurci argues that his non-compliance is not as extreme as that which attracted penalties for contempt in Murano, Cassidy v. Cassidy, (2010),³⁵ or Oelbaum v. Oelbaum, (2011).³⁶ There is no evidence of misleading or fraudulent tactics, and the non-compliance has not extended over many years. As a result, imposing quasi-criminal sanctions on him for his contempt is not necessary or appropriate.

ii) Striking a Litigant’s Pleading

1. Pleadings on Issues of Custody and Access

88The court must also exercise judicial restraint when considering whether to strike a litigant’s pleading for breach of a court order. The court has articulated this principle in multiple ways. It has noted that striking a party’s pleading is a “serious step” which the court should only take in “unusual cases”³⁷ or in exceptional circumstances”³⁸ or “sparingly and with caution”. It is a remedy of last resort.³⁹

89The court must balance the need to maintain the integrity of the rules and its own orders governing disclosure, with the need to make a just determination of the issues based on a full evidentiary record. This is especially important when the court must make a determination as to the custody of children and their access to their parents, which requires it to have a full understanding of the children’s needs and, for older children, their preferences.

90In King v. Mongrain, (2009),⁴⁰ the Court of Appeal set aside a motion judge’s order striking the pleadings of a mother who the Court of Appeal noted had been “in flagrant disregard” of three court orders, from Ontario and Quebec. The orders required her to return the parties’ two children, aged three and two and a half years, respectively, to Ontario from Quebec, where she had taken them without their biological father’s consent. The motion judge, after striking the mother’s pleadings, made a final order granting custody of the children to their father. Gillese J.A., speaking for the Court, stated:

The motion judge had the power to strike the appellant’s pleadings due to her repeated refusals to obey court orders: see rule 14(23) of the Family Law Rules, O. Reg. 114/99. I have every sympathy for the court, which had given Ms. Mongrain a number of opportunities to participate, to be heard, and to assist in the proper resolution of this matter.

At the same time, however, courts should use the utmost caution in striking pleadings where children’s interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga 2005 CanLII 39324 (ON CA), (2005), 203 O.A.C. 388 (C.A.). The reason for that admonition is simple – in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. Thus, while this court upheld the first instance decision to strike the pleadings of the husband in Faga, two things must be noted. First, the pleadings were largely about financial matters, although there were limited parts on custody and access. Second, and very significantly, as the court noted at para. 7 of its reasons, the Office of the Children’s Lawyer would represent the children’s interests in the proceedings. Accordingly, the court was assured that the information necessary to make custody and access decisions in the children’s best interests would be before it. ⁴¹ [Emphasis added.]

91In Murano, Simmons J.A. stated that it is preferable to avoid striking pleadings that relate to the custody of and access to children. In that case, the motions judge had allowed Mr. Murano “to make submissions on the pleadings remaining before the court” if he complied fully with the outstanding court orders.⁴²

92This is not a case, like Haunert-Faga v. Faga, (2005),⁴³ where the Office of the Children’s Lawyer is representing the interests of the Scurci children. The court will have the benefit of Dr. Horowitz’ s. 30 assessment, and could make a request, even at this point, pursuant to s. 89(3.1) of the Courts of Justice Act,⁴⁴ that the Office of the Children’s Lawyer represent the children at the trial. However, making such an order at this stage of the proceeding, especially after the s. 30 assessment has been completed, and striking Mr. Scurci’s pleadings on the issues of custody and access, would create a risk that Alessio, and even, perhaps, Matteo, would feel compelled to advocate for their father in his absence.

93In all the circumstances, I have concluded that it is not in the interests of the children, or of a just determination of the custody and access issues, to strike Mr. Scurci’s pleadings on those issues. Ms. Scurci shall have leave, however, if she wishes, in the light of Dr. Horowitz’ findings and recommendations (which I have not seen), to seek such alternative remedy as she may require, such as an order that Alessio be required to undertake counselling now, or that she be permitted to conduct questioning of Dr. Horowitz, to mitigate the prejudice to her of the prolonged status quo, and of Mr. Scurci’s failure to facilitate counselling for Alessio.

2. Pleadings on Financial Issues

94In Gordon v. Starr, (2007), Quinn J. emphasizes that subrule 14(23), and the remedies it provides for failure of a party to obey an order, should not be taken lightly, and that the onus is on the non-compliant party to show, on a balance of probability, why the rule should not apply.⁴⁵ Quinn J. notes that it would take an extraordinary event to trigger the “unless” provision of subrule 14(23).

95In Ferguson v. Charlton, (2008), Spence J. in the Ontario Court of Justice sets out the approach to be taken by the courts in dealing with a litigant’s non-compliance with court orders under subrule 14(23).

(a) The court must ask where there is a triggering event, such as non-compliance with a court order made on a motion.

(b) If the triggering event has occurred, the court should ask whether it is appropriate to exercise its discretion in favour of the non-complying litigant by ordering that subrule 14(23) does not apply or by not sanctioning the litigant under sub-rule 1(8). This discretion will only be exercised in exceptional circumstances. The court’s decision as to whether or not to exercise its discretion in favour of the non-complying party ought to take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party.

(c) If the court determines that it will not exercise its discretion in favour of the non-complying party, it will then exercise its very broad discretion as to the appropriate remedy pursuant to either sub-rule 1(8) or sub-rule 14(23).⁴⁶

96This court considered and implicitly adopted the three-part test from Ferguson in Morin v. Cunningham, (2009),⁴⁷ and Ragno v. Ragno, (2010).⁴⁸

97In Purcaru v. Purcaru, (2010), the Court of Appeal upheld the order of a trial judge who struck the husband’s pleadings and his financial statement and proceeded to trial the financial issues based solely on the evidence of the wife and her expert.⁴⁹

98Lang J.A. stated:

Nonetheless, the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that is entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue. In Sleiman v. Sleiman (2002), 2002 CanLII 44930 (ON CA), 28 R.F.L. (5th) 447 at p. 448, a case involving a refusal to provide financial disclosure, this court upheld the motion judge’s determination that the appellant had demonstrated a “blatant disregard for the process and the orders of the court” as well as her decision precluding the appellant from contesting the wife’s financial claims. In Vacca v. Banks (2005), 6 C.P.C. (6th) 22, the plaintiff had repeatedly failed to comply with orders related to discovery and the progress of litigation. Ferrier J. for the Divisional Court, observed at p. 27 that the master’s remedy of the dismissal of the action may be an appropriate sanction to recognize the court’s “responsibility for the effective administration of justice.” [Emphasis added.]

3. The Onus

99As noted in Ferguson, once the court has found that Mr. Scurci breached the earlier orders of this court, the onus is on him to show why the court should exercise its discretion to find that rule 14(23) does not apply and that his pleadings should not be struck.⁵⁰ Ms. Scurci has taken many steps to address Mr. Scurci’s non-compliance and non-disclosure, and he has had a year, two court appearances, and three adjournments, to comply with the disclosure requests and his outstanding support obligations.

100Mr. Scurci’s failure to pay support, while not the subject of this motion, provides context to Mr. Scruci’s failure to comply with the court’s orders for disclosure and assessment of the children’s needs. This is not a case, such as Clewlow v. Clewlow, (2004), where the husband offered to have the FRO take his wife’s support from his bank account and provided a void cheque to them for this purpose.⁵¹ Mr. Scurci simply waited for the FRO to garnish his wages. In the meantime, he paid nothing to Ms. Scurci, directly or indirectly, and did nothing to facilitate the FRO’s collection of the support that he knew he was required to pay.

101This is also not a case, such as Marcoccia, where the Court of Appeal set aside an order striking a husband’s pleadings that had been based on the husband’s failure to disclose records pertaining to a business in which he held a 50 per cent interest before selling his interest in the business to his partner. In Marcoccia, the husband maintained that he believed that he had complied fully with the disclosure order and the court below had made no finding that the husband deliberately breached the disclosure order. Additionally, it was still possible that the wife would obtain the records she sought, and the Court of Appeal concluded that an order striking the husband’s pleadings was not necessary to prevent prejudice to her.

102The circumstances of the present case differ materially from those in Marcoccia. I have found that Mr. Scurci deliberately breached the Orders in the present case. Additionally, his breaches caused permanent harm to Ms. Scurci and prejudiced her ability to secure a fair determination of the issues on their merits.

103There can be no doubt as to the relevance of the records that Mr. Scurci has failed to produce. The fact that they were not produced will make it more difficult for Ms. Scurci to establish Mr. Scurci’s ability to pay support from the date of separation to the end of 2011, when Wein J.’s temporary support order took effect. It will also make it more difficult for her to adjust the amount of that support and to establish his ability to pay support on an ongoing basis.

104The delay that Mr. Scurci’s failure to make financial disclosure has caused prejudices Ms. Scurci’s ability to establish her right to retroactive support at trial, and to resist an argument by Mr. Scurci that his arrears of support should be rescinded or reduced. If the court does not strike his pleadings, the court, in its consideration of the factors that the Supreme Court set out in D.B.S., in deciding whether to award Ms. Scurci retroactive support, and the factors that the Court of Appeal set out in DiFrancesco, in deciding whether the support ordered previously should be retroactively reduced, and whether the arrears of support should be rescinded or reduced. These determinations would entail an inquiry, unnecessary but for the fact of the delay, into who was responsible for the delay, and whether an order for retroactive support, and a refusal to reduce such support or rescind arrears, would cause financial hardship to Mr. Scurci.

CONCLUSION AND ORDER

105It is appropriate in the circumstances that Mr. Scurci’s pleadings on the issues of equalization of net family property and support be struck pursuant to rules 13(17), 14(23), and 19(10) of the Family Law Rules due to his failure to make financial disclosure and pay Dr. Horowitz on the schedule that the court established with the parties’ consent. Mr. Scurci shall also pay Ms. Scurci’s costs of the present motion.

106Based on the foregoing, it is ordered that:

1. Mr. Scurci’s pleadings are struck out on the issues of equalization and spousal and child support.

2. Ms. Scurci may proceed to an uncontested hearing on those issues.

3. Mr. Scurci shall pay Ms. Scurci’s costs of this motion in the amount of $22,000, inclusive of disbursements and H.S.T.

4. The costs of this motion shall be deemed to be support and shall be enforced by the Director of the Family Responsibility Office.

Price J.

Released: November 19, 2013

COURT FILE NO.: FS-12-75097-00

DATE: 2013-11-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ADRIANO EDUARDO SCURCI

Applicant

and –

Footnotes

1. 1Sharpley v. Sharpley, 2005 ONCJ 483, quoting Genua v. Genua, 1979 CanLII 3622 (ON CJ), [1979] O.J. No. 1016 (Ont. Prov. Ct., Fam. Div.)
2. 2Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.
3. 3Walsh v. Walsh, 2008 CanLII 586, 55 RFL (6th) 86 (ON SC), per D.L. Corbett J., at para. 27; Tughan v. Tughan, 2003 CanLII 2355, 39 RFL (5th) 227 (ON SC), per Gordon J., at para. 23
4. 4Wein J., endorsement dated May 27, 2013, paras. 6 -8.
5. 5Family Law Rules, O.Reg. 114/99, Rule 14(23).
6. 6Family Law Rules, O.Reg. 114/99, Rule 31(5).
7. 7S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231. [D.B.S.]. .
8. 8D.B.S., at para. 97.
9. 9D.B.S., at para. 99.
10. 10D.B.S. , at para. 125.
11. 11Malleye v. Brereton, 2007 ONCJ 216.
12. 12Brown v. Brown, 2010 NBCA 5, 353 N.B.R. (2d) 323.
13. 13Cole v. Freiwald and Freiwald, 2011 ONCJ 395, at para. 144, Zucker J. [Cole] citing Beninger v. Beninger, 2009 BCCA 145, 99 B.C.L.R. (4th) 72(spousal support); L.B.L. v. S.B., 2010 NBQB 339, 366 N.B.R. (2d) 24(N.B.Q.B., Fam. Div.) (child support).
14. 14Cole, at para. 30.
15. 15Cole, at para. 145, citing Haisman v. Haisman, 1994 ABCA 249, [1994] 157 A.R. 47 (C.A.).
16. 16Cole, at paras. 107, 108.
17. 17Cole v. Freiwald and Freiwald, per Zucker J., at paras. 126 to 131
18. 18D.B.S., at paras. 1, 98.
19. 19Haisman v. Haisman, 1994 ABCA 249, [1994] 157 A.R. 47 (C.A.), at paras. 24-27, leave to appeal to the S.C.C. refused, [1995] S.C.C.A. No. 86 [Haisman].
20. 20Filipich v. Filipich, (1996) 1996 CanLII 1294 (ON CA), 26 R.F.L. (4th) 53 (C.A.) [Filipich].
21. 21Gray v. Gray, (1983), 1983 CanLII 4531 (ON SC), 32 R.F.L. (2d) 438 (Ont. H.C.) [Gray].
22. 22DiFrancesco v. Couto (2001), 2001 CanLII 8613 (ON CA), 56 O.R. (3d) 363 (C.A.), Simmons J.A. [DiFrancesco].
23. 23Gray, at p. 441.
24. 24DiFrancesco, at para. 25.
25. 25Adamson v. Steed, 2006 CanLII 44263 (Ont. S.C.), Herman J. [Adamson].
26. 26Morgan v. Morgan, 2006 BCSC 1197, 30 R.F.L. (6th) 413.
27. 27Lavoie v. Tisserand, 2006 SKQB 401.
28. 28Adamson, at para. 130.
29. 29Adamson, at para. 137.
30. 30Vanbeek v. Vanbeek, 2008 CanLII 23712 (Ont. S.C.), at paras. 10, 11, Kent J
31. 31Fournier v. Broatch, 2010 ONSC 2768, at para. 22, Ray J.
32. 32Hefkey v. Hefkey, 2013 ONCA 44, at para. 3.
33. 33Forrest v. Lacroix (2000), 2000 CanLII 5728 (ON CA), 48, O.R. (3d) 619 (C.A.).
34. 34Murano v. Murano, 2002 CanLII 49352 (Ont. C.A.), Simmons J.A. [Murano].
35. 35Cassidy v. Cassidy, 2010 ONSC 2707, 85 R.F.L. (6th) 148.
36. 36Oelbaum v. Oelbaum, 2011 ONCA 300, 94 R.F.L. (6th) 251.
37. 37Marcoccia v. Marcoccia, 2008 ONCA 866, 60 R.F.L. (6th) 1, at para. 3 [Marcoccia].
38. 38Molina v. Molina, 2011 ONSC 3030, Healey J.
39. 39Spettigue v. Varcoe, 2011 ONSC 6618, para. 31.
40. 40King v. Mongrain, 2009 ONCA 486, 252 OAC 54, Gillese J.A. [King].
41. 41King, at paras. 32, 33.
42. 42Murano, at para. 57.
43. 43Haunert-Faga v. Faga 2005 CanLII 39324 (ON CA), (2005), 203 O.A.C. 388 (C.A.)
44. 44Courts of Justice Act, R.S.O. 1990, c C.43, s. 89(3.1).
45. 45Gordon v. Starr, (2007), 2007 CanLII 35527 (ON SC), 42 R.F.L. (6th) 366 (Ont. S.C.) at para. 16, Quinn J.
46. 46Ferguson v. Charlton, (2008) ONCJ 1 [Ferguson].
47. 47Morin v. Cunningham (2009), 2009 CanLII 34992 (ON SC), 96 O.R. (3d) 783 (S.C.).
48. 48Ragno v. Ragno, 2010 ONSC 3028.
49. 49Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121, at paras. 47-49, Lang J.A.
50. 50Ferguson, at para. 59.
51. 51Clewlow v. Clewlow, 2004 CanLII 7355 (Ont. S.C.) at para. 31, Marshman J.