COURT FILE NO.: 409/09
DATE: 2014 Mar 21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NANCY CATHERINE MYERS
Applicant/Mother
– and –
GREGORY GEORGE MYERS
Respondent/Father
Lucienne MacLauchan, for the Applicant
William D. Watson, for the Respondent
HEARD: March 17, 2014 at Napanee
MACLEOD-BELIVEAU, J.
ENDORSEMENT ON MOTION
The Issue
[1] The mother, Nancy Catherine Myers, asks the court for an order striking the respondent father’s Motion to Change dated March 4, 2014; or in the alternative requiring the father to post security for costs in the amount of $25,000.00, and for costs of $4,357.85, not including the day of hearing and for costs for the hearing. The authorities relied upon are Rule 1 (8) and Rule 24 (13) of the Family Law Rules and sections 24(1) and 25 of the Child Support Guidelines.
[2] The father, Gregory George Myers, opposes the orders sought and seeks to proceed with his Motion to Change and seeks costs of $1,500.00.
BACKGROUND and LITIGATION HISTORY
[3] The parties married on March 21, 1992 and separated on May 1, 2008 after approximately 16 years of marriage. They are parents of two children, Nolan, age 13 and Montana, age 17. Their separation and litigation has been acrimonious.
[4] The first court application was issued on November 4, 2009 and numerous court orders have been made since that time to determine the issues arising from their marriage. These orders include orders for disclosure of relevant financial information of the father, two trial decision orders - one for equalization of property, and one for child and spousal support, and numerous orders for the payment of costs.
[5] On July 18, 2011, Justice Abrams made a procedural order that the trial in this matter be bifurcated. He ordered the property issues and equalization of property to proceed first, and adjourned the child and spousal issues to proceed at a later date.
[6] The trial of the property issues proceeded before Justice Parfett. She released her decision on August 5, 2011. The parties were unable to agree on the issue of costs. On October 19, 2011, Justice Parfett ordered the father to pay $10,000.00 in costs to the mother. She held in her decision that the father’s behaviour was substantially more egregious than the mother’s in that the father dragged his feet on many disclosure issues which made it difficult to negotiate any settlement. The father did not pay the costs order.
[7] The mother brought a motion before Justice Trousdale on January 16, 2012 as the father had not paid the $10,000.00 costs order. Justice Trousdale ordered that the father’s pleadings in the remaining trial issues of child and spousal support be struck if he did not pay the $10,000.00 costs order before March 19, 2012. The father ultimately paid the $10,000.00 in costs which allowed his pleadings to remain in the trial on the support issues.
[8] The trial of the child and spousal support issues proceeded before Justice Tausendfreund on November 26, 27 and 28, 2012. His decision was released on January 8, 2013, with an addendum released January 21, 2013. A final order dated January 21, 2013 was issued which required the father to pay both child and spousal support to the mother. On May 10, 2013, Justice Tausendfreund ordered the father to pay $55,000.00 in costs to the mother. The father has never paid this costs order.
[9] Justice Tausendfreund found that initially the children spent equal time with both parents who reside in close proximity to one another in Napanee. In August of 2010, there was an incident during a championship baseball tournament in New Brunswick that caused Montana to be embarrassed and angry at her father. Montana has refused to see her father as of December 2010 and now resides in the sole care of her mother. Nolan continued to spend equal time with both parents.
[10] After the father’s driver’s licence was suspended for non-payment by the Family Responsibility Office in June of 2013, the father has not honoured the time sharing arrangement with his son. Nolan now also resides in the sole care of his mother. The mother has not yet asked for increased child support for Nolan to reflect the current situation.
[11] Justice Tausendfreund held that the total income of the father from his plumbing and mechanical business, which included imputed cash income not reported to Canada Revenue Agency, was $96,000.00 for 2009; $160,000.00 for 2010; $168,000.00 for 2011; $184,000 for 2012, and imputed income of $184,000.00 for 2013.
[12] Justice Tausendfreund found that the mother originally had a good job with Legal Aid Ontario. In 2009 she earned $80,917.00; in 2010 $78,350, and in 2011 she earned $68,477.00. The father filed a complaint with her employer in November of 2010 and the mother was forced to be off on sick leave and eventually left that employment. He held that the complaint by the father was malicious and without substance. The mother re-qualified as a paralegal and opened an office in Napanee which is still in its infancy. Her projected income for 2013 was found to be $35,000.00 and for 2014 $50,000.00.
[13] The father husband appealed Justice Tausendfreund’s final order to the Court of Appeal. The mother applied for leave to extend the time to cross-appeal which was granted on April 15, 2013. The father was ordered to pay $750.00 in costs to the mother. The father has never paid this costs order.
[14] On May 7, 2013, the father’s appeal was dismissed for delay. The father was ordered to pay $750.00 in costs to the mother. The father has never paid this costs order.
ANALYSIS
[15] The Family Responsibility Office began to take steps to enforce the spousal, child support, and cost orders made by Justice Tausendfreund. Due to his chronic lack of payment of these orders, the father’s driver’s licence was suspended in June of 2013 and remains suspended currently.
[16] The father’s response to losing his licence for failure to obey these court orders was to send the mother an electronic message which contained the following:
“I am preparing for the life long driver’s licence suspension, it would have been more likely to bother me when I was younger and was driving for shits and giggles but the novelty has long worn off. Getting around is easily accomplished, to me it doesn’t matter how I get to where I got to go and the sites are better through the passenger window.” [Emphasis added]
[17] The inference I draw from this response is that the father is thumbing his nose at the orders of the court and that he does not intend to follow these court orders and pay them during his lifetime.
[18] As a result of the enforcement steps taken by the Family Responsibility Office, funds have been seized from the father’s bank accounts in 2013. Recently in 2014, his income from his sole client, Reliance Comfort, is now being garnisheed at a rate of 50% to pay the significant sum of money he owes by way of court orders to the mother.
[19] On January 20, 2014, a request was made by the Family Responsibility Office for a Default Hearing to be held. Justice Trousdale found the father to be in default of payment in the amount of $142,650.10 to the mother as of September 1, 2013 as set out in the Director`s statement of arrears. This amount does not include the two cost orders of the Court of Appeal as they were not ordered to be enforced through the Family Responsibility Office as support. The total that the father owed to the mother as of the date of that order therefore was in fact $144,150.10, which sum includes the Court of Appeal costs ordered of $1,500.00.
[20] In her reasons, Justice Trousdale held that she was not satisfied on the evidence before her that the father did not have the ability through 2013 to make the ongoing monthly payments for spousal and child support as ordered by Justice Tausendfreund. She held that the father continued to carry on his plumbing business, although he incorporated the business in August of 2013, and that he has not done anything intentionally to make the business less profitable. She held that the father did not produce any documentary evidence of what income the business made in 2013, and that she could not find that the income of the business declined in 2013.
[21] She found that the father`s reported income in 2012 was $136,000.00 as confirmed by Canada Revenue Agency and that the company had $90,000 in the bank. She found that the father had only voluntarily made five payments of $750.00 each for a total of $3,750.00 from February of 2013 until June of 2013 on the ongoing support orders and that he had paid nothing since. She found that there was no financial reason why the father could not have made the ongoing monthly payments during 2013, but he chose not to do so.
[22] Justice Trousdale ordered the father to pay the ongoing monthly payments of $3,596.00 commencing February 1, 2014 and in default of the monthly payment that he be incarcerated in jail for 3 days for each and every default thereafter. In addition, the father was ordered to pay the sum of $50,000.00 on the arrears within 60 days, in default of which the father be incarcerated in jail for 30 days or until the sum of $50,000.00 was sooner paid, and made no order as to costs.
[23] On March 4, 2014, the father issued his Motion to Change the Order of Justice Tausendfreund to reduce the quantum of child support retroactively and to rescind all arrears; to terminate spousal support effective September 18, 2013 and to vary the quantum of spousal support retroactively and to rescind all arrears, and for costs on a substantial indemnity basis. The father`s line 150 reported income in 2012 was $136,168.00 as confirmed by Revenue Canada. He now says his income is $54,320.00 for 2104 and $ 64,232.00 for 2013. The father has not filed any supporting financial material whatsoever to substantiate his income or explain the sudden drop in his income.
[24] On March 11, 2014, the mother brought her motion to strike his Motion to Change and alternatively, for security for costs. On the motion before me, the Office of the Family Responsibility Office filed an affidavit, which I accept, that as of March 12, 2014 the father was in default of $62,359.92 in periodic support payments, plus $55,000.00 in fixed court costs and $400.00 in administration fees for a total owing in default of $117,759.92.
[25] Counsel for the Family Responsibility Office further stipulated that the amounts now being garnisheed from Reliance Comfort which have not yet been credited total $28,712.45 and are ongoing monthly. The father deposes that the total is actually $33,189.62 that has been garnisheed from his employer between January 29, 2014 and March 14, 2014, a 45 day period. At a rate of 50% of his income, this is further evidence that the father has a significant income and has the ability to pay, but chooses not to do so.
[26] The father’s arrears at present are therefore approximately $89,047.47 plus the $1,500.00 in costs ordered by the Court of Appeal for a total of $90,547.47. This total is subject to an adjustment reduction for each monthly garnishment payment credited.
[27] The appropriate authority that I rely upon is Rule 1 (8) as amended and in effect January 1, 2014 of the Family Law Rules which provides:
FAILURE TO OBEY ORDER
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order. O. Reg. 322/13, s. 1.
[28] The recent amendment to Rule 1(8) differs from the former Rule in that the requirement in former Rule 1(8)(b) of “wilfully” failed to obey an order has been removed as a requirement to dismiss a claim. Failing to obey a court order and failure to follow the Rules are now treated separately. The new Rule 1(8)(b) allows for conduct less than wilful to be encompassed by the Rule. The establishment of the failure to obey an order in a case will be sufficient to dismiss a claim. Rule 1(8) still provides that the court may deal with a failure to obey an order in a case by making any order that it considers necessary for a just determination of the matter, including striking out any Motion to Change.
[29] The case law under the former Rule is therefore still applicable and contains essential principles to be applied in these types of cases. In Ferguson v. Charlton 2008 ONCJ 1, [2008] O.J. No. 486, R.J. Spence, J (Ont. C.J) set out a three step process for approaching this kind of an issue which I have underlined below. My answer to each step follows each step:
Is there a triggering event that would allow consideration of Rule 1(8)? In this case, the answer is yes. The father has failed to obey the orders of the court by non-payment when he has the ability to do so.
Is it appropriate to exercise discretion in favour of the father, the non-complying party? Taking into account the relevant history in the course of this litigation and the conduct of the non-complying party, I answer that question in the negative. There is nothing on the facts of this case to warrant my discretion being exercised in favour of the father in these circumstances. He chooses to disobey a court order and not pay when he is able to do so.
Having determined not to exercise my discretion in favour of the father, the non-complying party, what is the appropriate remedy pursuant to the provisions of Rule 1(8)? The answer I find is to strike the father’s Motion to Change and to order him to pay costs, and to make the ancillary orders as provided in para [35] of this decision to ensure a just determination of this case.
[30] The father’s failure to obey numerous court orders, I find, is deliberate, willful and blatant. I consider the above orders to be necessary for a just determination of this matter. The orders protect the integrity of the administration of justice which is at stake when a party disobeys a court order. In Hughes v. Hughes 2007 CanLII 10905 (ON SC), [2007] O.J. No. 1282 (S.C.J.) at para 18&19, Justice J.W. Quinn held that, “The husband cannot expect to come before this court and be given a voice in circumstances where he has thumbed his nose at the legal system by deliberately breaching an order.” The same can be said of the father in this highly egregious case. To ensure that the court process is not further misused, I find that the mother is entitled to security for costs at any future proceeding. I also find that the father is not entitled to bring any matters before the court if he is in breach of any outstanding order.
[31] As the father has not complied with prior orders of the court, he now owes a significant amount of money to the mother after a hard fought court battle over the last four and a half years. His payments to the Family Responsibility Office, except for five $750.00 payments in 2013, have been by way of garnishment of his bank account and his income from his employer. I find that he has no intention to pay voluntarily. This inference is supported by his past behaviour of non-payment and his total disrespect of the orders of this Court. This fact in and of itself is enough to support the appropriate remedy of striking the father’s Motion to Change.
[32] In addition, I find, that other ancillary orders are necessary to ensure that the mother is not put to the extraordinary and unwarranted expense of defending claims made by the father that are without merit when the father is in flagrant breach of outstanding orders of the court. I find that it is necessary to order the father to pay all past and current orders and to require the father to post substantial security for costs for any future Motions to Change that are brought by him.
[33] The father’s Motion to Change, I find, is his inappropriate attempt at appealing Justice Tausendfreund’s order for child and spousal support that he chooses not to pay. The Motion to Change materials and the unsupported financial documents, do not demonstrate any material change of circumstances whatsoever. The Motion to Change, I find, is a deliberate attempt by the father to frustrate the payment of monies to the mother as duly ordered by the Court. He took no action until his income was garnisheed and negative findings were made against him by Justice Trousdale in the Default Hearing on January 20, 2014 that could result in his incarceration. The previous loss of his licence in June of 2013 had no effect at ensuring his compliance with the orders of the court.
[34] It would be highly prejudicial to the mother to require her to file pleadings and expend more money on legal fees to respond to the father’s latest attempt at avoiding compliance with the orders of the court. The mother must have some assurance that the court will enforce the process that is provided for in the Rules and maintain respect for the administration of justice. I consider the orders made in paragraph [35] of my decision to be the appropriate and necessary orders to provide a just determination of the issues in this matter based on the entirety of the evidence before me.
COSTS
[35] The mother was entirely successful on this motion and is entitled to her partial indemnity costs of $4,357.85 to date of hearing, together with counsel fee at the hearing of $1,200.00 plus HST of $156.00 for a total costs award to her, payable by the father forthwith, of $5,713.85.
ORDER MADE
[36] For all of the above reasons, a Final Order shall issue as follows:
The father, Gregory George Myers’ Motion to Change issued March 4, 2014 and returnable April 14, 2014, is hereby struck pursuant to Rule 1(8)(c) of the Family Law Rules.
No further Motions to Change shall be brought by the father, Gregory George Myers, unless and until all arrears, as determined by the Family Responsibility Office, are paid in full; the $1,500.00 in costs ordered by the Court of Appeal are paid in full; and the costs of this motion of $5,713.85 inclusive of HST and disbursements as ordered in Paragraph 5 of this Order are paid in full pursuant to Rule 1(8) of the Family Law Rules.
If any future Motions to Change are brought by the father, Gregory George Myers, he shall pay any and all ongoing support orders, and they shall be in good-standing each and every month as determined by the Family Responsibility Office to allow the Motion to Change to proceed or to continue to proceed before the court pursuant to Rule 1(8) of the Family Law Rules.
If any future Motions to Change are brought by the father, Gregory George Myers, he shall first be required to post security for costs by depositing with the court, the sum of $25,000.00 to the credit of the action pursuant to Rule 1(8) of the Family Law Rules.
Costs of this motion, including counsel fee at the hearing are fixed at $5,713.85 inclusive of HST and disbursements and are payable by the father, Gregory George Myers, to the mother, Nancy Catherine Myers, forthwith, to be enforced as support by the Family Responsibility Office pursuant to Rule 1(8)(a) of the Family Law Rules.
The Honourable Madam Justice Helen MacLeod-Beliveau
Released: March 21, 2014
COURT FILE NO.: 409/09
DATE: 2014 Mar21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NANCY CATHERINE MYERS
Applicant/Mother
– and –
GREGORY GEORGE MYERS
Respondent/Father
ENDORSEMENT ON MOTION
MacLeod-Beliveau, J.
Released: March 21, 2014