SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-08-73-1
DATE: 20140530
RE: Eric M. Parham, Applicant
AND
Xinjuan (Joan) Jiang, Respondent
BEFORE: Blishen J.
COUNSEL:
Marion E. Jackson, Counsel, for the Applicant
David J. Hughes, Counsel, for the Respondent
HEARD: May 28, 2014
ENDORSEMENT
Introduction
[1] The long and tortured history of this high conflict custody/access and child support case continues…
[2] Ms. Jiang requests by way of Motion an order that Mr. Parham’s Application for custody of 8 year old Jerica (born August 4, 2005) dated July 10, 2012 and his Reply filed September 14, 2012 be struck, along with all Notices of Motion and Affidavit materials filed by him and that the case proceed on Ms. Jiang’s evidence alone by way of an uncontested trial.
[3] In the alternative she seeks an order for security for costs in the amount of $30,000 cash payable into court or by the posting of a bond and an order that the Applicant be prohibited from bringing any further Motions without leave of the court.
Positions of the Parties
[4] The Respondent argues that the Applicant has not complied with numerous court orders for financial disclosure nor has he paid anything towards costs orders now amounting to $9847.17. In addition, he has paid nothing for child support despite the order of Patrick Smith, J. on September 24, 2013 that he pay $666 per month on an imputed income of $100,000 on a set off basis, as the parties are sharing the parenting and care of Jerica on a week about basis.
[5] The Applicant argues he has now complied with most of the disclosure ordered. He states he has limited means, as disclosed in his recently filed Financial Statement, with which to pay the costs ordered or child support. He cannot move to change the child support ordered on September 24, 2013, as Justice Smith required that he obtain leave of the court before he could bring any motion regarding support. He has requested and been refused leave on two occasions.
Evidence
[6] Since the September, 2013 orders of Justice Smith, the affidavit evidence, attachments and further court endorsements reveal the following:
(1) The Applicant has paid nothing towards costs orders made against him beginning in 2008 which now total $9,847.17.
(2) The Applicant has paid no child support pursuant to the September 24, 2013 court order.
(3) The Applicant’s Motion for leave to bring a Motion to change child support, along with other relief, heard February 6, 2014 was dismissed with $2,000 in costs payable by him.
(4) On that Motion, Backhouse J. stated regarding financial disclosure:
[3] Despite many emails from Mr. Hughes to Mr. Parham, Mr. Parham has not produced a 2012 income tax return. Although he was employed in Ontario in 2012, no T4 has been produced. No document totalling his EI was produced (what was produced was a document showing various amounts paid with no total). The U.S. Tax Return for 2013 that he has produced is 2 pages only and lacks any attachments or schedules. The U.S. tax returns produced for earlier years were approximately 15 pages long and also lacked attachments and schedules. No notices of assessment have been produced. (Mr. Parham states that there is no such thing in the U.S. and that you only receive acknowledgment that you filed if you owe money. This seems unlikely). The January 21, 2014 financial statement filed by Mr. Parham is barebones. It shows zero income, states that he has been unemployed since September 17, 2012, zero liquid assets and no explanation as to how he pays his expenses shown in the amount of $3208/month.
[4] I am not satisfied that Mr. Parham has made bona fide efforts to make disclosure. Accordingly, I consider that it would be in appropriate to grant leave to allow him to proceed with a motion to vary child support.
(5) The Applicant’s further Motion for similar relief (leave to bring a Motion to change child support) was dismissed on February 14, 2014 with costs payable by him of $1,500.
(6) None of the orders for disclosure, costs or child support were ever appealed.
(7) On February 19, 2014 Mackinnon J., on the Respondent’s Motion for relief due to non-payment and non-disclosure, ordered: the outstanding costs noted above, all child support arrears and outstanding financial disclosure be paid and provided within 45 days. The Applicant did not comply with that court order.
(8) The Applicant has now, by attachments to his affidavit and financial statement filed May 22, 2014, finally provided partial financial disclosure, including his 2011, 2012 and 2013 U.S. tax returns.
(9) His 2011 and 2012 U.S. tax returns were filed with the I.R.S. well before the motions heard by Justices Backhouse and Mackinnon and yet were never provided to the court or to counsel for Ms. Jiang.
(10) His 2012 US return states his income as $123,066 which is actually the income he earned in Canada for Wi-Lan Inc. as disclosed on his Record of Employment from Wi-Lan Inc. He does not appear to have filed a Canadian tax return in 2012.
(11) The Applicant’s 2013 U.S. tax return shows an income of $17,945 which is in fact the amount he received from EI in Canada that year. Again he does not appear to have filed a 2013 Canadian tax return.
(12) The Applicant’s September 30, 2013 financial statement states he has not worked since September 17, 2012, has no income, no liquid assets and provides no explanation of how he pays what are then listed as $6,388 of monthly expenses.
(13) His January 21, 2014 financial statement again reveals no income and no liquid assets but states his monthly expenses are $3,208, with no explanation as to how they are paid.
(14) His latest financial statement dated May 16, 2014 states he is now self-employed (as a lawyer) in Norwood, New York with a monthly income of approx. $6,000 ($72,000 annually) and now his expenses are listed as $8,395 per month. Again there is no explanation as to how they are paid.
(15) Although 6 days before this Motion, the Applicant finally provided his U.S. tax returns and an up to date financial statement, his financial situation, disposable income, work status and even residence remain unclear. Although he argues he would need a payment plan in order to comply with the outstanding court orders, no viable plan was presented to the court.
Law and Analysis
[7] Rule 1 of the Family Law Rules, O. Reg. 114/99 (FLR) states:
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.
FAILURE TO FOLLOW RULES
(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.
DOCUMENT THAT MAY DELAY OR IS INFLAMMATORY, ETC.
(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. O. Reg. 322/13, s. 1.
POWER TO MAKE ORDER UNDER SUBRULE (8), (8.1), OR (8.2)
(8.3) For greater certainty, a court may make an order under subrule (8), (8.1) or (8.2) at any time during a case, and the power to make such an order exists unless these rules expressly provide otherwise. O. Reg. 322/13, s. 1.
CONSQUENCES OF STRIKING OUT CERTAIN DOCUMENTS
(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
- The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
- The party is not entitled to participate in the case in any way.
- The court may deal with the case in the party’s absence.
- A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.
[8] There is no question that Mr. Parham has failed to obey numerous court orders for disclosure, costs and child support. The difficulty is in determining the appropriate remedy given the particular circumstances of this case.
[9] Striking a party’s pleadings for non-compliance is a remedy available to the court. However, it is to be reserved for only the most serious and exceptional cases. It is to be used sparingly and with great care and even reluctance. See: Stulberg v. Batler, [2009] O.J. No. 4780, 78 R.F.L. (6th) 199 (Ont. C.J.), reversed on other grounds 2010 ONSC 5299, 94 R.F.L. (6th) 375.
[10] As summarized in David Steinberg et al. Ontario Family Law Practice 2014 (Markham: LexisNexis, 2013) at 1403, the Ontario Court of Appeal noted in Ablett v. Horzempa, 2011 ONCA 633, [2011] O.J. No. 4391, that “the courts must use the utmost caution in resorting to this sanction due to the seriousness of denying a litigant their right to participate in the court process. This is a drastic remedy of last resort which is restricted to particularly egregious cases of deliberate, persistent non-compliance, total disregard for the court process, and failure on the part of the offending party to either comply with or adequately explain non-compliance.”
[11] In Purcaru v. Purcaru, 2010 ONCA 92 (Ont. C.A.), [2010] O.J. No. 427), the Ontario Court of Appeal emphasizes that special care must be taken in family law cases where the interests of children are at issue:
The consequences of striking pleadings or limiting trial evidence when custody or access is at issue was discussed in King v. Mongrain 2009 ONCA 486, (2009), 66 R.F.L. (6th) 267 (Ont. C.A.), where Gillesse J.A. observed at p. 273 that pleadings should not be struck if such a remedy leaves the court with insufficient information to determine custody. See also Haunert-Faga v. Faga 2005 39324 (ON CA), (2005), 203 O.A.C. 388 (C.A.).
The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia 2008 ONCA 866, (2009), 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual case”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to any injustice, which will erode confidence in the justice system.
[12] The interests of 8 year old Jerica are clearly at issue here both with respect to what parenting plan is in her best interests, in light of the assessment of Dr. Weinberger, as well as what child support should be payable in an equal shared parenting regime, if that is the ultimate result after trial. The Applicant takes issue with the recommendations of Dr. Weinberger and wishes to challenge them by cross-examination and also by presenting his own evidence.
[13] I note that both parties have taken an adversarial, highly conflicted approach to parenting issues, resulting in numerous motions. So much so that in his September 24, 2013 endorsement, Justice Smith stated:
[51] I am concerned that, because of the high degree of conflict involved in this case that there will be a never ending stream of motions and cross-motions to this Court…
He goes on:
[53] An order restricting the parties’ ability to return to court to endlessly re-litigate the custody and access portions of the orders made today is reasonable in view of all the circumstances and serves to promote the best interests of Jerica.
[54] Accordingly, leave of this Court is required before any party may bring a motion relating to the custody or access of Jerica…
[14] In this high conflict case it would be difficult if not impossible to make a fair and equitable decision in the best interests of Jerica, without the participation of both parties.
[15] Nevertheless, Mr. Parham has blatantly breached court orders. He has just days ago, now with the assistance of counsel, begun to comply by providing most of the outstanding disclosure. Unfortunately that disclosure raises more questions.
[16] His most recent financial statement does disclose an annual income of $72,000, a significant increase from the EI income of $17,945 in 2013. Therefore, it is not unreasonable to expect him to pay off his costs and to pay appropriate child support either by way of a payment plan or a loan.
[17] I do not find an order for security for costs pursuant to R. 24(13) appropriate as there is no evidence, at this time, that Mr. Parham is able pay into court the $30,000 requested as security. Although the criteria under R. 24(13), 1 and 2 have been met, priority must be given to payment of child support and outstanding costs before considering security for costs.
Order
[18] Under all the circumstances, I order the following:
Costs outstanding, including for this motion are fixed in the amount of $12,000.
Arrears of child support as of May 31, 2014 are fixed in the amount of $5,994 ($666 x 9 months).
The Applicant is to make immediate efforts to obtain a loan from an arms- length individual or organization in order to pay all outstanding costs and child support arrears totalling $17,994 and is to provide documentation of those efforts to counsel for the Respondent within 30 days.
If the Applicant is unable to obtain a loan to pay the entire outstanding balance owing of $17,994 or, pending approval and receipt of such a loan, he is to pay:
(a) a minimum of $500 per month commencing June 1, 2014 towards the amount owing for costs ($12,000) until they are fully paid;
(b) a minimum of $500 per month commencing June 1, 2014 towards the arrears of child support ($5,994) until they are fully paid.
Mr. Parham is to continue to pay ongoing child support of $666 per month on the 1st of each month as ordered by Justice Smith. The next payment is due June 1, 2014.
If the Applicant does not comply with any of the above terms, the Respondent may return the matter to court to seek further relief regarding payment issues.
Although most disclosure has now been provided by the Applicant, there remain more questions than answers. Therefore the Respondent has leave to Question the Applicant on financial matters and on all financial disclosure received to date. Questioning to take place within 45 days. The Applicant may also cross-examine the Respondent on financial issues within 45 days.
Leave of the court is required before the Applicant may bring a motion relating to any issues. Based on the disclosure to date, his recent financial statement and the previously filed financial statements, I do not grant him leave to bring a motion regarding any financial issues. Both parties are still bound by the order of Smith J. requiring leave of the court prior to any motion regarding custody or access.
This matter is to proceed to a 2 hour Settlement Conference to be held within 90 days on a date to be fixed by the trial co-ordinator in consideration with counsel within 1 week.
This case is to be placed on the January, 2015 trial list.
Blishen J.
Date: May 30, 2014
COURT FILE NO.: FC-08-73-1
DATE: 20140530
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Eric M. Parham, Applicant,
AND
Xinjuan (Joan) Jiang, Respondent,
BEFORE: Blishen J.
COUNSEL: Marion E. Jackson, Counsel, for the Applicant
David J. Hughes, Counsel, for the Respondent
ENDORSEMENT
Blishen J.
Released: May 30, 2014