CITATION: C.M.M. v. D.G.C. and J.M., 2015 ONSC 1815

COURT FILE NO.: FS-13-18928

DATE: 20150319

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

C.M.M.

Applicant

– and –

D.G.C. and J.M.

Respondents

Jeffery Wilson and Jessica Braude, for the applicant

Valois P. Ambrosino, for the respondent D.G.C.

No one appearing for the respondent J.M.

HEARD at Toronto: March 11 and 12 2015

C. Horkins J.

Introduction

[1] The applicant (“the child”) is 15 years old. The respondent D.G.C. (“the respondent”) is alleged to be the applicant’s biological father.

[2] The child brings a motion to vary paragraphs 2, 4 and 5 of the order of Justice D. Wilson dated January 24, 2014 (“the Wilson Order”). In part, the Wilson Order denied the child’s interim motion for child support and disbursements, directed the respondent to comply with specific disclosure, restrained the child from contacting the respondent and his family and required the child to be represented by a litigation guardian. The requirement for a litigation guardian was overturned on appeal.

[3] The child seeks a variation and requests the following orders:

(1) An order for temporary without prejudice interim child support payable as of April 1 2014.

(2) An order pursuant to s. 10 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 granting the child leave to obtain DNA testing to determine the issue of the respondent’s parentage, that the respondent pay for this testing and that it be done immediately.

(3) A declaration of parentage.

(4) An order removing the restraining order and replacing it with an undertaking for no contact.

(5) An order that the respondent pay the child $50,000 for interim disbursements.

(6) An order striking the respondent’s pleading for failure to comply with the disclosure that Justice D. Wilson ordered.

[4] It is important to note that on this interim motion, the child is not seeking retroactive child support (prior to her application) or payment for s.7 expenses. The child support that she seeks is table support. This is often called Guideline child support. The child’s claim for support is pursuant to the Child Support Guidelines, O. Reg. 391/97 (“the Guidelines”). I will refer to her claim as Guideline child support.

overview of the application

[5] The child commenced her application in September 2013 when she was 14 years old. On […], 2015, she will be 16 years old. In her application she seeks temporary and final child support including s. 7 expenses from the date of her birth on […], 1999, a declaration of parentage, full financial disclosure from the respondent and interim costs/disbursements of $50,000 from the respondent.

[6] In his Answer, the respondent denies all of the requested relief. He expresses “lack of certainty” about whether he is the child’s biological father. The respondent added the birth mother J.M. (“JM”) as a respondent to this application. She has not filed an Answer and has taken no part in this litigation.

[7] The respondent relies on an agreement that he signed with JM on […], 1999 (“the Agreement”). Pursuant to this Agreement, the father paid JM $37,500 in full satisfaction of his obligations to pay child support.

[8] The respondent does not advance a claim for undue hardship under s. 10 of the Guidelines. He simply refuses all of the child’s claims and relies on the Agreement.

[9] The respondent served a motion before a case conference was conducted. He wanted the court file sealed, the names of the parties initialized and a restraining order against the child. This motion and the child’s motion were eventually heard on January 24, 2014 before Justice D. Wilson.

[10] The first case conference was held on November 5, 2013. The trial was expedited and scheduled for three days in the week of February 10, 2014. The above motions were scheduled. The trial date was later moved to the week of March 17, 2014 for three days.

[11] When the motion was argued before Justice D. Wilson, the trial was scheduled to start in less than two months. At this point the respondent had provided minimal disclosure. He had filed his financial statement with a copy of his 2011 assessment and a summary of the 2012 assessment. In his financial statement, he represented a net worth of $12,011.67.

[12] The child appealed the Wilson order. Leave to appeal was granted solely on the issue of the litigation guardian. The Divisional Court heard this appeal on November 28, 2014. On January 13, 2015, the Divisional Court released its decision. It set aside the order requiring the applicant to appoint a litigation guardian. In summary, this appeal court found that “the Family Rules provide their own code for the participation of children, a code that does not include the need for a litigation guardian.”

[13] After release of the Divisional Court decision, the parties obtained an order appointing me as the case management judge to hear all motions and the trial.

[14] At a case conference on February 19, 2015, the parties agreed on a date for these motions. The respondent stated that he wanted to question JM and the applicant’s grandfather. I directed that the respondent could question JM. Since the grandfather is not a party to the application, I ordered that the respondent must serve the grandfather with a notice of motion seeking an order to question him.

[15] Following my order, the respondent did not question JM and did not bring a motion to question the grandfather. This is important to note because the respondent requested an adjournment of the child’s motion because he had not yet questioned JM. He submitted that her evidence is relevant to the issue of Guideline child support and that the court needs to hear from her. I add that the Wilson order directed that the child and JM attend for questioning before trial. Despite asking for the order and receiving it, the respondent did not question the child or JM.

[16] The absence of JM’s participation in this application is a theme that the respondent relies on. He fails to appreciate or alternatively chooses to ignore, the clear law that Guideline child support is based on the payor’s income and that the Agreement does not bind the child. The respondent has had ample opportunity to question the child and JM. In these circumstances, I refused his request to adjourn the child’s motion.

[17] It is the applicant’s position that she is entitled to seek a variation of the Wilson order because there has been a material change in circumstances since this order was made. Alternatively, she relies on the Court’s parens patriae jurisdiction to grant the relief.

[18] For the reasons set out below, I find that there has been a material change in circumstances that allows the child to seek a variation of the Wilson order. As a result, it is not necessary to rely on the parens patriae jurisdiction of the court.

[19] In summary, the following relief is granted. The Wilson order is varied and the respondent is ordered to pay Guideline interim child support and expenses and the paragraph 2 of the Wilson order (the restraining order) is vacated upon filing an Undertaking. The motion to strike the respondent’s Answer is adjourned and he is ordered to comply with the disclosure order by April 30, 2015.

[20] The applicant also seeks an order for leave to obtain DNA testing at the respondent’s expense, to determine the issue of the respondent’s parentage. The respondent refuses to submit to DNA testing to determine the child’s parentage. During the hearing of the child’s motion, respondent’s counsel advised the court that if I issue an order for DNA testing, the respondent will not comply. The respondent is found to be the father of the child and a declaration of parentage is made.

The Background

[21] The following provides an overview of the relevant evidence. Further evidence will be reviewed as each issue is considered. The respondent has provided most of the background in the affidavits that he has sworn. Unless indicated otherwise, the respondent is the source of the following evidence.

[22] The respondent had a relationship with JM in the spring of 1998. In October 1998, JM contacted the respondent and told him that she was pregnant with their child. The respondent states that although he had doubts about the paternity of the child, he tried to discuss his role in the child’s life. JM refused to allow the respondent to play any role in the child’s life. She asked the respondent to pay her a sum of money and did not want the respondent to have any future contact with her and the child.

[23] The respondent was “happy to support the child financially” and “wanted to be an active and engaged father”. JM refused. The respondent says that JM was abusive and threatening to him and said that if he pursued a role in the child’s life she would make false allegations of sexual assault against him. After these threats were made, he never saw JM again.

[24] The respondent was not deterred. He retained a lawyer and brought a motion seeking information about the child’s birth, reasonable access, joint custody and an order restraining JM from leaving the country. JM had threatened to move to the United States. The respondent did not want that to happen because it would interfere with his ability to participate in the child’s life.

[25] JM continued to refuse the respondent’s request to have a role in the child’s life. He made “the extremely difficult decision” to sign an Agreement with JM. The key parts of this Agreement between the respondent and JM are summarized below:

• The respondent will pay JM $2,000 for prenatal expenses.

• The respondent will pay JM $37,500 “in full satisfaction of his obligations to pay child support”.

• The respondent will pay JM $7,500 toward her legal expenses.

• The respondent will have no contact with the child directly or indirectly.

• The respondent will never seek custody or access.

• JM will never directly or indirectly seek support from the respondent under any circumstances.

• JM will have sole custody care and control of the child.

• The child’s birth certificate will describe the father as “unacknowledged”.

• Neither the respondent nor JM will seek a declaration of paternity, unless the other party breaches the agreement.

[26] If JM or the respondent breached the Agreement directly or indirectly, “remedies” were agreed to. In particular, it was agreed that if JM directly or indirectly claims child support in the future from the respondent or if a court orders the respondent to pay child support, JM shall immediately be required to pay the respondent $37,500 plus any legal fees that the respondent incurred directly or indirectly relating to the child support claim.

[27] If the respondent directly or indirectly contacted JM or the child, the Agreement states that he would be “immediately liable for the payment of child support under the Child Support Guidelines and be liable to pay $1,007 the month following contact subject to adjustment with proof of income.”

[28] The respondent and JM received independent legal advice before signing the Agreement.

[29] The law is clear that such an agreement does not bind the child and the parties knew this when the Agreement was signed. Para. 18 of the Agreement states:

[C] and [M] acknowledge that the law does not permit a child’s rights to financial support to be released. Nevertheless, the parties undertake this agreement in good faith and with determination to abide by the Agreement and in the belief that it is in the child’s best interests.

[30] The money ($47,000 in total) was paid under the Agreement and the child was born on […], 1999. JM raised the child on her own. The respondent who was a lawyer when he signed the Agreement continued to practice law and went on to have three children with his common law partner.

[31] There was no attempted contact between the child and the respondent until February 26, 2013, when the child wrote a letter to the respondent’s mother asking for financial help. In this letter the child asked for her grandmother’s help in obtaining “financial support for fees at Havergal College”. (The child had a scholarship offer, but needed financial help to cover the full tuition. The child did not end up attending this school. She is now in her second year at a public high school.) The child received no reply to her letter and, as a result, the application was commenced on September 19, 2013.

[32] The respondent clearly wanted to be involved in the child’s life after learning that she had been conceived. As he stated he wanted to be an “active and engaged father” and “support the child financially”. However, the Agreement was signed and 14 years later he was faced with the child’s request for financial help.

[33] Sadly, whatever good intentions the respondent had in 1999 have now disappeared. Instead of paying child support as the law clearly requires, the respondent has chosen to spend more than $100,000 in legal fees fighting the child’s fundamental right to support.

A MAterial change has occurred

[34] Section 37(1) of the Family Law Act, R.S.O. 1990, c. F.3 ("Family Law Act ") provides for "variation of an order made or confirmed under this Part", referring to Part III. Variation is not limited to a final Order.

[35] Section 37(2.1)(c) of the Family Law Act, enables the court, if satisfied of a material change in circumstances, to make any other order under s. 34 of the Family Law Act that the court considers appropriate in the circumstances.

[36] The Guidelines provide for variation of an order where the amount of child support did not include a determination made in accordance with the table, because of any change in the "condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support."

[37] The child has provided convincing evidence to show that since the date of the Wilson order, material changes have occurred. These are changes that were not expected or foreseeable.

[38] The respondent vigorously argues that no change at all has occurred. It is difficult to understand why he thinks that he can make this argument to the court, given the following evidence that is not disputed.

There is no Pending Trial Date

[39] When the motion was argued before Justice D. Wilson on December 2 2013, there was an expedited trial fixed for March 17, 2014. In her reasons, the motion judge stated that there was no “immediate need for support and given the proximity of the trial date” the child will not be prejudiced “by the denial of interim support”. In other words, there was no harm to the child if she was required to wait until trial to seek child support.

[40] The trial date was struck and it has not been rescheduled. I reject the respondent’s position that he is ready to go to trial and that there is no change because a trial date can be set immediately. As explained below, he has not yet complied with his obligations to make full and fair disclosure.

[41] The court no longer has the comfort of knowing that a final order will be made without delay. It can no longer be said that the child will not be prejudiced if this court denies interim child support pending trial. More importantly, this child should not have to wait for a final order at trial to receive the child support. The court routinely orders interim child support for children and should do so in this case.

The Child’s Financial Circumstances Have Deteriorated

[42] The child’s financial circumstances have deteriorated and her needs are urgent. While the respondent disputes that this change has occurred, he has no evidence to the contrary.

[43] At the time of the Wilson order, the child (and JM) lived with her grandfather in his house in Toronto. The grandfather had to sell his house and move back to the UK. The house was mortgaged and there was “not much equity in the home”.

[44] The child explains the change in her financial circumstances as follows:

15. Prior to this past summer, my maternal grandfather, A.K.M. (“grandfather”) was generous enough to assist my mother and I financially. Although I understand my grandfather was under no legal obligation to do so, he generously provided us with a place to live in exchange for nominal rent. My grandfather was also assisting with many of my daily living expenses such as food and clothing.

16. In the spring of 2014, my grandfather realized he could no longer afford to keep his mortgage in good standing and therefore he had to sell his home. Upon selling the home, my grandfather returned to live in the United Kingdom. He is no longer able to financially support us, as he had previously done.

17. My mother and I are now struggling, more than ever. Not only is my grandfather no longer assisting with housing and my daily living expenses, but I am no longer receiving other gifts that my grandfather used to give. For example I am no longer receiving monthly TTC passes, haircuts or money to see movies with my friends. My social activities are far more limited because I do not have enough money to afford public transportation and attend social outings.

18. Unlike most kids my age, my social life is the least of my worries, because since my grandfather left Canada, we have had problems finding a suitable and affordable place to live.

19. When my grandfather’s house was sold, we had to move out. We lived for a while at our neighbours’ place. They were kind enough to rent us a basement room. Although the rent was cheap, the living conditions were less than ideal. There was no kitchen so we could only eat dry foods. My dinners usually consisted of crackers, granola bars or bagels, not the usual hot meals to which I had become accustomed when living at my grandfather’s.

20. The basement apartment became more of a problem as the fall and winter months approached. The basement became damp and cold. One result was that I developed a throat infection. I endured flu-like symptoms that lasted for several weeks. I visited the walk-in medical clinic on more than four occasions in November. I was not getting better. I was missing school. My mother began to search for alternative living arrangements. Alternatives were far more costly.

21. In January 2015 my mother and I moved into an apartment near my school. We could only afford a one-bedroom unit. We have to share a bedroom and bathroom. Although we now have a kitchen, there is very little space.

22. I observe my mom to be struggling to make monthly rent payments. I am unsure how long we will be able to stay in this apartment. Although we have always lived on a tight budget, with my grandfather’s home no longer available, there is further financial strain, even for day to day living expenses.

23. My educational opportunities have also been further limited. In the past my grandfather generously paid for school programs or field trips. Since his move, I have been unable to participate in school trips or programs. For example, I had been looking forward to participating in an intensive French program subsidized by my high school but I could not afford the cost.

[45] The child has no income and her mother JM works part-time and has “very little money”.

[46] Given the serious deterioration in the child’s financial circumstances and the fact that there is no trial in the near future, a denial of interim child support is clearly prejudicial to the child. Added to this is the respondent’s proven ability to pay, that I will deal with below.

The Respondent’s Non-Disclosure and Complex Financial Circumstances

[47] The respondent has not complied with the disclosure directed by the Wilson order. He was ordered to make “best efforts … as soon as possible” and has not done so.

[48] It is now apparent that the respondent’s financial circumstances are complex. Furthermore, the financial disclosure, as it now stands, makes it abundantly clear that additional disclosure is required immediately. The child, more than ever before, requires the assistance of her counsel and business valuator, Ms. Melanie Russell.

[49] The respondent provided the following explanation for his non-compliance with the Wilson order. In para. 63 of his March 10, 2015 affidavit he states:

63. I will continue to make my best efforts to provide the disclosure that has been ordered in a timely way. I am preparing and will be able to produce on Wednesday, March 11, again another volume of documentation. While I appreciate the scope of the original Order (made in the context of there being a litigation guardian) and my obligation to make “best efforts” to fulfill its requirements, it is my sincere belief that the Applicant and the Court have the critical information they need to ascertain my income, should it be required to do so. It is simply incorrect to assert, as the Applicant has suggested, that there has been or will be any delay in the proceeding due to the current state of financial disclosure on my part and my ongoing commitment to provide same. The suggestion is also particularly ironic given the utter lack of disclosure by C.M. and her family.

[Emphasis added.]

[50] There are several problems with this excuse. The Wilson order does not make the respondent’s disclosure conditional on the appointment of a litigation guardian. Furthermore, his child support obligation is not suspended because a litigation guardian is required. This is what the respondent argues. It is simply unsupportable in law to say that a procedural issue, such as the requirement of a litigation guardian, suspends a parent’s obligation to support a child. Since he refuses to undergo DNA testing, he has no basis in law to refuse child support.

[51] An order is not a suggestion. It is not open to the respondent to explain his noncompliance by stating that the child has the “critical information they need to ascertain [his] income”. The Wilson order tells the respondent what he shall produce. This is what the child requires. The respondent cannot redefine his disclosure obligation.

[52] This respondent’s excuse shows that he has no regard for the Wilson order. He knew that the child and her counsel had many questions about the respondent’s income. In the November 10, 2013 affidavit the child raised questions in para. 19. In part she pointed out that the income in his 2012 income tax return was $166,808 and yet his financial statement listed yearly expenses totaling $294,264. Today, the questions about the respondent’s financial circumstances have grown in number and complexity.

[53] There is a long list of items that have not been provided. Significant court ordered disclosure is missing. For example: documents from the respondent’s former law firm, financial statements for his two professional law corporations, information from his shareholder loan accounts relating to his law firm and the rest of his personal account statements (i.e. bank accounts, investment accounts, lines of credit).

[54] The complexity of the respondent’s financial circumstances that is now apparent was not obvious at the time of Wilson order.

[55] The disclosure that he has provided raises numerous questions about his income. The available disclosure shows that the respondent’s financial statement is incomplete and inaccurate. For example, statements for a personal chequing account covering February 2013 through December 2014 show that the respondent is regularly using the following credit cards: Amex, CIBC Visa and TD Visa GM. However, only one credit card is listed on the respondent’s financial statement.

[56] The 2013 financial statement does not list any personal credit cards. There is one credit card that the Professional Corporation holds and the respondent pays $1,401.35 in full every month on this unknown card. The 2015 financial statement lists the same card with the same payment and reveals that it is a Visa card. It is unknown if this is one of the above Visa cards.

[57] The chequing account records show that the respondent has been making significant payments on the three credit cards. These payments are well in excess of the $1,401.35 monthly payment he lists in his financial statement. For example, on the CIBC Visa card, the respondent paid the following: in March 2013 three payments of $10,000, on May 29, 2013 a payment of $10,000, on June 13 2013 a payment of $15,000. These are but a few examples. The records show numerous large credit card payments on all of the cards. The payments on these credit cards together with the expenses that the respondent lists on his financial statement are inconsistent with the income that he claims to make.

[58] In the 2013 financial statement, the respondent states that his income is $166,808. In the 2015 financial statement, his income is $81,971.80. Compare this against the cash flow in the personal chequing account. From February 16, 2013 through December 31, 2013, the respondent deposited $371,383.85 into his personal chequing account. In 2014, the respondent deposited a total of $272,801.82 into the chequing account. Both amounts far exceed the income that he reports on his financial statements.

[59] The child’s counsel directed a law clerk in their office to conduct a Teranet search of properties that might be associated with the respondent and his common law partner. The law clerk discovered many properties and provided the court with her affidavit. The properties are not disclosed in the respondent’s financial statements or in his affidavit.

[60] For the purpose of this motion, I refer to two properties. They are owned by the respondent’s management company that I will refer to with initials, J & C Management. A corporate search confirms that the respondent is a Director, Secretary and Treasurer of J & C. He is the “C” in J & C.

[61] The first property is located at D[…] Street in Toronto. It was purchased by J & C on August 7, 2014 for $900,000. A charge on the property was discharged on September 16, 2104. According to the Land Registry record, the property is unencumbered and there is $900,000 of equity in the property.

[62] J & C bought a second property at J[…] Street in Toronto on September 6, 2013. They paid $2,350,000. On the same day a mortgage with the TD Bank for $1,500,000 was registered on title. According to this Land Registry record, there is $850,000 of equity in this property.

[63] In summary, when the Wilson order was made, the court had minimal financial information from the respondent. The respondent was relying on his November 8, 2013 financial statement that attached a copy of his 2011 assessment and a summary of the 2012 assessment. In his financial statement, he represented a net worth of $12,011.67.

[64] The complexity of the respondent’s financial circumstances was not apparent at the time of the Wilson order. Two additional facts add to the complexity. First, the respondent has not complied with the Wilson order. Second, it is now obvious that the child will require additional disclosure from the respondent beyond what Justice D. Wilson ordered.

Respondent’s Position re Paternity and DNA Testing

[65] The respondent states that he had doubts about whether he was the biological father when he learned that JM was pregnant. Despite such doubts he paid the money under the Agreement. When the respondent filed his Answer he referred to his lack of certainty on the issue of his paternity.

[66] When the parties attended the first case conference before Justice Herman, the issue of paternity was discussed. It is not surprising that the issue was discussed since the child’s claims rest on the position that the respondent is her biological father. If the respondent is not the biological father there would be no reason for the child to pursue her application. The parties were at the start of litigation and no reasonable party would want to incur legal fees if there was any substance to the issue of paternity.

[67] During the case conference before Justice Herman, the child’s counsel invited the respondent to participate in DNA testing since he had suggested in his pleading and affidavit that he may not be the birth father. For example, in his Answer, at paragraph 5, he states:

It was apparent to D.C. that he had been targeted by J. M. and, despite his lack of certainty about whether he was the unborn child's biological father; he agreed to pay J. M. a lump sum.

[68] Again, in a subsequent affidavit of November 1, 2013, at paragraph 2, the respondent states:

Pursuant to the Agreement, I paid a significant amount of money to satisfy my child support obligation, notwithstanding my uncertainty as to whether or not I was the Applicant’s biological father.

[69] During the case conference the respondent would not agree to DNA testing. Subsequent correspondence between counsel led the child to believe that paternity was not an issue.

[70] On November 25, 2013, Mr. J. Wilson wrote to respondent’s counsel regarding the issue of paternity:

Arising from the Case Conference two Fridays ago, you were to get back to me within 7 days (i.e. before Friday November 22^nd^) if your client wanted DNA testing to take place. Since I did not hear from you, I am assuming we can proceed without DNA testing.

[71] Respondent’s counsel replied to this letter as follows:

Given the terms of the Agreement between J.M. and D.C. he does not intend to submit to a DNA test at this time.

[72] The term in the Agreement that respondent’s counsel referred to is para. 8 that states: “Neither [the respondent] nor [JM] will seek a declaration of paternity, unless the other party breaches the Agreement.” As I have already stated, the Agreement does not bind the child. It cannot be used as an excuse for not submitting to DNA testing.

[73] Mr. J. Wilson replied in his letter of November 29, 2013 as follows:

I confirm that your client is not pursuing any request for DNA testing and thus, there is no issue whatsoever as to his paternity of our client.

[Emphasis added.]

[74] There was no reply to Mr. J.Wilson’s November 29 letter. The application continued and the child and her counsel reasonably understood that paternity was not an issue. As the child states in her affidavit “[w]e took those communications to mean that the Respondent had decided DNA testing was not necessary because he accepted to not contest paternity.”

[75] There was a material change in circumstances around October 2014 (after the Wilson order). At this point, the respondent was representing himself and he chose to raise the issue of paternity again.

[76] In summary, there have been several material changes in the circumstances. I will now consider the variations to the Wilson order that the child requests and provide reasons for orders that I am making.

Interim child support

The Child’s Position

[77] The child seeks Guideline child support effective April 1, 2014. This is slightly more than two months after the Wilson order was made. The effective date is premised on the position that if the respondent had complied with the Wilson order and made disclosure as soon as possible, that compliance would have been accomplished and the child would have received the respondent’s disclosure by April 2014.

[78] The child could have asked for interim child support from the date her application was issued. This would have been reasonable. I point this out simply to demonstrate the fairness of her position on this motion.

[79] Based on the current disclosure, the child argues that the court should impute an income of $200,000 to the respondent. Based on this income, Guideline monthly child support is $1,633.

[80] The child asks that this interim child support order be without prejudice to her right to argue that a higher income should be used on any future motion or at trial. Since the respondent is in the process of making disclosure and the child has yet to seek the help of an expert, it is understandable that this right must be preserved.

The Respondent’s Position

[81] Midway through the motion and after the child’s counsel had finished his submissions, the respondent’s counsel said that his client would pay the child $1,633 a month assuming an income of $200,000. This concession was somewhat unclear.

[82] When seeking to clarify the scope of the respondent’s position, it became apparent that the respondent still refuses to pay child support. This is the respondent’s position, as stated by his counsel in court:

(1) The respondent will not consent to an order that he pay child support because it “offends” his primary position that he owes no child support because of the Agreement.

(2) The court should not make a child support order because there has not been a material change in circumstances. (I have already decided that a material change in circumstances exists and therefore the Wilson order can be varied.)

(3) The respondent will pay the child $1,633 a month effective January 2015 going forward, but he does not label this as child support. He wants the payment to be “uncharacterized”. He did not say for how long he would pay this monthly amount.

(4) He agrees with a finding of fact that his income is $200,000 for the purpose of making this payment, but not for the purpose of a child support order.

[83] I pause to note that the respondent’s decision to agree with the fact that his income is $200,000 was made after Mr. J. Wilson presented a detailed analysis of the respondent’s current disclosure and some evidence about property that the respondent’s professional corporation owns. This compelling analysis demonstrates that at a minimum, the court should impute $200,000 to the respondent for the purpose of determining child support.

[84] Mr. J. Wilson describes the respondent’s litigation strategy as playing a game of “catch me if you can” as happened in Sarafinchin v Sarafinchin, 2000 CanLII 22639 (ON SC), [2000] O.J. No. 2855 at para. 14. To use this analogy, Mr. Wilson caught the respondent and the game is over. The respondent had no choice. He had to concede income of $200,000.

[85] Given the “grey” nature of the respondent’s concession, I intend to deal with the interim Guideline child support issue in its entirety. There should be no doubt that there is evidence to support imputation of income and a compelling basis for ordering child support. I am not prepared to rely solely on the respondent’s concession.

[86] The respondent’s position on the interim child support request is as follows:

(1) He owes no child support because of the Agreement.

(2) This court should follow the reasoning of Justice D. Wilson and her denial of interim child support.

(3) Child support is discretionary - there is no “urgent or pressing” need for support.

(4) The respondent does not have sufficient disclosure of JM’s “economic circumstances” or “meaningful information about her financial circumstances and whether she has been successful in achieving her goal of full-time employment”.

(5) The child has withdrawn from parental control.

[87] For the reasons set out below, I reject all of the respondent’s positions.

He Owes No Child Support because of the Agreement and the Wilson Order

[88] I will deal with the first two arguments together.

[89] The respondent's continued reliance on this Agreement as a defence to child support runs contrary to well-known binding jurisprudence.

[90] First, child support is the right of the child. Second, no contract or agreement can oust the court's jurisdiction in respect of child support. Parents cannot barter away a child’s right to support. Third, the parents' conduct at the time of the child's birth and thereafter, and at the time of the Agreement, is irrelevant to the child's entitlement to support. Finally, the court is always free to intervene and determine the appropriate level of support for a child. (see Richardson v Richardson, 1987 CanLII 58 (SCC), [1987] S.C.J. No. 30 at paras 13-16; Willick v Willick, 1994 CanLII 28 (SCC), [1994] S.C.J. No. 94 at para. 16; Deiter v. Sampson, 2004 CanLII 12841 (ON CA), [2004] O.J. No. 904, 184 O.A.C. 198 (C.A.) at para. 4.)

[91] On the last point I add that the court has the power under s.33(4)(a) of the Family Law Act to set aside a contract dealing with child support, if it results in unconscionable circumstances. The Agreement does result in an unconscionable circumstance. Section 33(4)(a) states as follows:

(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

[92] The respondent says the Agreement is relevant because Justice D. Wilson relied on it and leave to appeal her order on child support was not granted. Therefore in his words, two judges in this court found that the Agreement is relevant and that the issue of child support should be left for trial.

[93] The respondent’s counsel continually argued that I should follow my two fellow judges. Further, he says that Justice D. Wilson relied on two decisions to support her decision and I should do the same. The two decisions are Jones v. Murray, [2005] O.J. No. 2761 (S.C.) and Hall v. Sabri, 2011 ONSC 5495, 11 R.F.L. (7th) 380.

[94] For the purpose of the current motion for interim child support, it is my view that these decisions are distinguishable and do not support the respondent’s position that the Agreement precludes interim child support. These cases accept the above appellate authority (in para. 90) and present very different facts. They are not cases where parents have bargained away the child’s right to child support. They have no application to the facts of this case and do not alter the binding appellate jurisprudence set out above.

[95] In Jones v. Murray, the parent was paying child support of $2,260 a month pursuant to a separation agreement. The father reduced the amount to $1,182 to reflect what he thought he owed based on the Guidelines. A dispute developed concerning the father’s income. The mother issued an application. The father brought an interim motion to vary child support pending a final determination of his income and child support at trial. It was within this context that the court refused to grant interim relief given the Separation Agreement that the parties had signed.

[96] Hall v. Sabri is not even a case about child support. It deals with spousal support. The parties signed a Separation Agreement wherein the wife waived her right to spousal support. She issued an application to set the Separation Agreement aside and claim spousal support. The wife brought a motion for interim spousal support pending trial.

[97] Further, none of the case law in the respondent’s factum lends support to his position. He refers to a series of cases in his factum. Not one single case involves a parent who bargained away the child’s right to child support and later obtained a court order upholding the bargain to the prejudice of the child.

[98] By way of example, Charpentier v. Lascelle, 2006 SKQB 305, [2006] S.J. No. 429 (Q.B.) was a case of shared parenting. The mother was unemployed. The parents agreed that each would be financially responsible for the child when the child was in their care. Further, the mother would never pay child support because of her then financial circumstances. This agreement was reviewed by the court after the mother relinquished shared parenting. The mother was ordered to pay child support. The respondent relies on the following at para.13:

As noted in J.M.B. v. A.C.B., 2006 ABCA 150, [2006] A.J. No. 487 (Alta. C.A.) while it is true that parents cannot contract out of child support obligations and that child support is always open for review by the court, the fact that it is open to review does not preclude the court from considering a reasonable arrangement that the parties entered into voluntarily, with full disclosure and with the advice of counsel.

[Emphasis added]

[99] The Agreement in this case cannot possibly be described as a “reasonable arrangement”. The respondent has only paid $37,500 for child support. Spread over the 15 years of this child’s life this represents $2,500 a year. Given the respondent’s income, the Agreement is unconscionable.

Child Support is Discretionary - No Urgent and Pressing Need

[100] The respondent argues that this court should not grant an interim order for child support unless there is an urgent or pressing need. This is not a prerequisite for child support.

[101] Once again the respondent relies on a case that does not assist him: Walsh v Walsh, 2004 CanLII 36110 (ON CA), [2004] O.J. No. 254 (C.A.). In a final divorce order the father was ordered to pay child support based on an imputed income of $175,000. He paid child support according to this order. The mother later learned that his income was higher and she brought a motion to vary this final order. The motion judge varied the order retroactively without finding that there was a material change in circumstances. For this reason it was set aside on appeal.

[102] In contrast to the Walsh decision, no child support order has been made in this case. A material change has occurred since the Wilson order and therefore a variation is permitted. Furthermore, the child’s evidence shows that her need for support is urgent and pressing. Her father (unlike the father in the Walsh) is not making any child support payments.

[103] The respondent argues that child support is discretionary because s. 33(1) of the Family Law Act that states a “court may … order support” and determine the amount of support.

[104] The statutory regime for child support must be considered as a whole. It is wrong to focus solely on the word “may” in s. 33(1). In defined circumstances that do not apply in this case, the court has limited discretion.

[105] Section 33(11) of the Family Law Act states that “[a] court making an order for the support of a child shall do so in accordance with the child support guidelines.” [Emphasis added.]

[106] The presumptive rule for the amount of child support is set out in s. 3 of the Guidelines as follows:

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[107] Subsection 33(12) creates an exception to the presumptive rule of Guideline support:

(12) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,

(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.

[Emphasis added.]

[108] If a court departs from the Guideline child support under s. 33(12), then s. 33(13) states that the court “shall record reasons for doing so.”

[109] The money paid under the Agreement benefited the child for a period of time in the past. Since the respondent has not made full disclosure of his past income, the child cannot go back and calculate exactly when this child support ran out. It depends on the respondent’s income each year and this is not known.

[110] I draw the inference that the $37,500 ran out several years ago. For example, a payor who earns $75,000 owes Guideline child support of $682 ($8,184 a year). A payor who continues to earn this income would have paid $81,840 over a 10 year period. This is simply an example. In fact, the respondent’s income tax returns show that he has had line 150 income well in excess of $75,000 ($354,298.07 in 2007, $471,490.98 in 2008, $389,573.56 in 2009 and $368,697.42 in 2010).

[111] To bring himself within the discretion of s. 33(12) the respondent would have to show that Guideline child support, payable now going forward, would be “inequitable” given the Agreement to pay a lump sum of $37,500 in full satisfaction of all child support that will ever be paid. In other words, he must show that the benefit to the child flowing from the Agreement is more beneficial to her than Guideline child support. Mathematically this is impossible. The respondent cannot bring himself within the s. 33(12) exception. For example, a year of child support payable at $1633 a month is worth $19,596. Three years of child support is worth $58,788. One quickly appreciates that the $37,500 ran out some time ago.

JM’s Economic Circumstances

[112] The respondent argues that JM’s financial circumstances are relevant to the child’s claim for child support. He complains that he has no meaningful financial disclosure from JM.

[113] The child seeks interim Guideline support. On this interim motion there is no claim for s. 7 expenses. The quantum of Guideline support is based on the payor’s income. JM’s financial circumstances are not relevant for the purpose of determining Guideline support.

Withdrawal from Parental Control

[114] The respondent states that he has no obligation to pay child support because the child has withdrawn from parental control. He describes the issue in his factum (at para. 78) as follows:

Additionally, in the instant matter, at trial a determination of whether the Applicant is under parental control will be required. J.M. is clearly the custodial parent. J.M. has never formally supported this application for child support nor has she participated in these proceedings. J.M. is precluded, according to the Agreement from doing indirectly through C.M.M. what she cannot do herself. It is D.G.C.'s position that C.M.M. is under J.M's parental control and therefore J.M. is responsible for the actions of C.M.M. If it is otherwise and C.M.M. is not under the parental control of J.M. then there would be no support obligation to consider under the Family Law Act upon her turning 16.

[115] Section 31(1) of the Family Law Act deals with the issue of parental control. It states:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[Emphasis added]

[116] The child is 15 years old and she continues to live with her mother, JM. They struggle financially. She attends school full time and has been identified as a gifted student.

[117] The issue of parental control is not triggered. The child will be 16 years old on […], 2015. For the purpose of child support that will be owed after the child turns 16, I will address the issue.

[118] In essence, the respondent seems to say that the child has withdrawn from parental control because she is pursuing this application for child support that he says is contrary to the Agreement. He argues that the Agreement precludes JM from seeking child support indirectly through the child. JM is the custodial parent and she must control the child. In other words, JM must make sure the child complies with the Agreement and this means she should not be seeking any child support from the respondent. If JM is not behind her child’s efforts to seek child support, then the respondent says the child has withdrawn from JM’s parental control.

[119] I reject this argument. It fails because neither parent can require the child to follow the Agreement. It is absurd to argue that because the child is pursuing her right to child support that somehow she has withdrawn from her mother’s parental support.

Imputing Income

[120] During the motion, the respondent continued to maintain his reliance on the Agreement. He did not address in his affidavit or factum the issue of what income should be used to fix child support. As noted, he agreed mid-way through the hearing that an income of $200,000 can be used, but he does not agree to pay child support.

[121] Given the respondent’s position, it is important to demonstrate that there is significant evidence to support my decision to impute an income of $200,000 to the respondent for the purpose of making a child support order. The evidence is as follows.

[122] In the respondent’s affidavit he explains that difficult events occurred in his professional life as a lawyer that impacted his income and led him to start his own law firm. He relies on debt that he lists in his financial statement and states that he and his family live in a rented premise.

[123] The following is an excerpt from his March 10,2015 affidavit:

78. I am a labour and employment lawyer. Between 1990 and 2011, I was employed and later became a partner at a labour and employment firm.

79. In 2008 and early 2009, a number of my partners experienced significant reductions in their practices as a result of the recession and the commensurate loss of manufacturing clients in Ontario. I was not affected because I primarily worked for one client, whose workflow was not negatively impacted by the recession.

80. In early 2009, I and two other partners at my former firm were falsely accused of inappropriate conduct. In an effort to poach my clients, certain individuals at the firm intentionally spread these false allegations, including to clients. As a result, I lost my major client.

81. For two years, the firm refused to publicly exonerate me, notwithstanding its conclusion that I had done nothing wrong. The allegations had become public and I was harmed by the publicity surrounding the false allegations. I was finally exonerated in 2011, but only after serious and continuing harm had been done to my practice.

82. As a result of the negative publicity described above, I was unable to join an existing firm on reasonable terms and therefore decided to open a new firm.

83. My 2011 line 150 income was $15,782.73. My 2012 line 150 income was $166,808. The Applicant points to this amount as causing some confusion. Of that amount, $154,993.68 was a result of a partial return of professional fees that I had previously incurred. The amount that I received was obviously non-recurring. Attached as Exhibit "M" is a decision of Justice Murray ordering my previous firm to pay this amount. My line 150 income for 2013 was $81,971.80 and I expect a similar income for 2014.

84. The Applicant also points to the amount of money that was deposited into my bank account. A significant portion of those funds that are referenced by C.M. in her Affidavit have been obtained through loans secured by promissory notes and these funds have largely gone towards the payment of legal fees.

85. I have two professional corporations; one is a partner in the firm and the other provides consulting services to the first at a fee, which is equal to any amounts earned by the partner. The law firm has allocated revenue to the partners for 2011, 2012, and 2013. It has yet to do so for 2014.

86. My second professional corporation reported income of $267,003 in 2011, $249,332 in 2012 and $195,650 in 2013. The first professional corporation has no or negligible income for these years.

[124] However, the respondent has not made a claim for undue hardship under s. 10 of the Guidelines. This would require him to say so in his pleading and complete Schedule B (“Other Income Earners in the Home”) to his financial statement. He has done neither. The respondent’s common law partner is employed and she earns more than the respondent. This is shown in the respondent’s income tax returns where he, as the lower wage earner, claims the child tax credit.

[125] The respondent’s two financial statements are not a reliable indicator of his income and ability to pay given the extent of his non-disclosure reviewed above. I highlight the following evidence to support imputing $200,000 of income to him.

[126] The respondent’s expenses show a lifestyle/standard of living that cannot be sustained on the income he reports. In the respondent’s November 8, 2013 financial statement his income is $166,808 (2012 income tax return). He says that he expects to earn $75,000 in 2013. He lists yearly expenses of $294,264. As previously noted, he deposited $371,383.85 into his personal chequing account over 11 months in 2013. In 2014, these deposits totaled $272,801.82.

[127] In the respondent’s February 2015 financial statement, his income is $81,971.80. However, his yearly expenses total $282,960.

[128] A party’s lifestyle is evidence from which an inference may be drawn that the payor has undisclosed income. I draw this inference. (See Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (C.A.); Rzadki v. Rzadki, 2015 ONSC 1166 at para.72).

[129] The respondent lists significant debts described as promissory notes and yet he makes no monthly payments. It is not known who holds the promissory notes.

[130] The 2013 financial statement shows a monthly credit card payment of $1,401.35 “paid in full each month”. The 2015 financial statement shows a monthly Visa credit card payment of $1,457.76, “paid in full each month”. His chequing account reveals that he made payments on credit cards that were not disclosed in either financial statement. In 2013: $23,315.33 on an Amex card and $124,000 on a CIBC Visa card. In 2014: $12,866.58 on an Amex credit card.

[131] The respondent has the ability to pay. This is clear from the above analysis. There is an evidentiary basis to impute $200,000 of income to the respondent based on the cash flow in his personal account.

[132] The court has the power to impute income to a payor under s. 19 of the Guidelines. Currently, on the facts of this case ss.19 (d) (f) and (g) apply and state:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income

[133] In addition to the circumstances that I have reviewed, it is important to note that the respondent has yet to make sufficient documentation available that would allow the child to make submissions on what expenses should be added back into income pursuant to s. 19(1)(g). Since he is self-employed, this is a relevant area of inquiry that typically leads to income being added back and grossed up.

The Respondent Owes Child Support

[134] In summary, I impute a yearly income of $200,000 to the respondent. I order the respondent to pay interim child support to the child of $1,633 a month payable as directed below.

[135] I received submissions from the parties on whether the child support should be paid directly to the child. The respondent says that it should not.

[136] The child has an urgent need for this support. She does not have money to pay for basic needs such as food, a TTC pass and haircuts. Her educational opportunities have been limited. She cannot afford the cost of an intensive school French Program. Even more concerning is the fear that her mother may not be able to pay the rent. It is critically important that this child have access to her child support in a timely manner.

[137] Counsel for the child provided a letter dated April 15, 2014 from Samantha Preshner of the Office of the Children’s Lawyer. This letter describes two options for monies payable to a minor under a settlement award. The first involves the appointment of a Guardian of Property. This is not a viable option. An application must be made to the court and the Guardian must post a bond. It is an option that costs money that the child does not have. If she cannot find a litigation guardian, I question how she can find a Guardian.

[138] The second option is to pay the money into court and apply for the release of money under the Minors’ Fund Program. There are no legal fees associated with this option and there is greater flexibility to seek payments for unforeseen expenditures. The request for release of child support from this fund is made by letter and every month a judge of this court reviews the requests in writing. If granted, the judge issues a fiat for the money to be released to the child.

[139] To ensure that the child’s urgent needs are addressed, I make the following order concerning payment of the child support.

[140] The respondent shall pay a lump sum of $9,798 in child support no later than April 20, 2015. This represents six months of child support (April 2014 through September 2014). This amount shall be paid directly to the child’s counsel, Wilson Christen LLP in trust. Counsel shall pay the money to the child and it shall be used solely for the purpose of child support.

[141] The respondent’s obligation to pay child support from October 1, 2014 going forward shall be paid to the Accountant of the Superior Court of Ontario and held for the child and released to her under the Office of The Children’s Lawyer Minors’ Fund Program.

[142] The respondent’s obligation to pay child support for the months October 1, 2014 through April, 2015 is payable in full on April 30, 2015. This covers seven months of child support and totals $11,431.

[143] Child support owing after April, 2015 is payable on the first day of each month.

[144] This child support order is made on a temporary without prejudice basis and is subject to any future order of the court. In particular I add that it is without prejudice to her right to argue that a higher income should be used on any future motion or at trial.

DNA Testing

[145] The child’s parentage is obviously an important issue. If the respondent is not the biological parent then he had no right to seek custody and access in 1998 and no obligation to pay JM child support. Proof that he is not the father is a complete defence to this application.

[146] The child would like to deal with this issue once and for all. She explains that the litigation is very stressful for her and she does not want to waste the court's resources and continue to litigate for another year (or more) only to find out that the respondent is not her biological father. The respondent’s Answer at paragraph 18 adds to the child’s frustration. The respondent pleads at para. 18 that he went to court when JM refused him the opportunity to have a meaningful relationship with the child.

[147] A person, who reasonably believes that he is not the father, would want to resolve this issue of parentage promptly. The respondent’s actions are not consistent with a person who doubts he is the father.

[148] The respondent states that he has always doubted whether he is the biological father of the child. Whatever doubts he had in 1998 about his parentage, he never took steps to resolve the parentage issue with DNA testing at that time.

[149] Instead, he retained a lawyer and incurred legal fees. He brought a motion for custody and access of the child (before she was born). He then abandoned this motion and paid JM a total of $47,000. The Agreement was prepared with the benefit of independent legal advice and so more money was spent on legal fees.

[150] The child tried to contact him in February 2013. More than two years have passed since then. The respondent says that he continues to doubt his parentage. In her affidavit dated November 10, 2013, the child said she would agree to immediate DNA testing. The issue was raised at the first case conference and again by the child’s counsel in letters that I have referred to above.

[151] The respondent states that his three children will have difficulty understanding “that I might have a biological child whom they have never met who has a different mother, who is not part of their lives”. He and his partner are concerned about the effect such news would have on their eldest child.

[152] The respondent and his partner saw a child and adolescent psychotherapist to obtain advice on the “best way of handling the litigation and the issues it raises with [their] children.” This therapist wrote a letter that the respondent relied on when he brought his motion to seal the court file and initial the names of the parties (the court file was not sealed, but the Wilson order directs that the parties’ names be initialed.) The therapist’s letter states that the publicity of this application “has the potential of having psychologically damaging effects on the children and their relationship” with their father. The respondent is concerned about publicity regarding this application.

[153] The respondent has refused every opportunity to settle the issue of his paternity. If DNA testing revealed that he was not the father, then this would erase all the worry about the risk of psychologically damaging his three children. It would bring an immediate end to the litigation.

[154] Instead, the application has continued. The respondent has continued to assert his doubts of parentage and has refused DNA testing. According to his financial statement, the respondent has paid $115,000 in legal fees, owes $16,000 in unpaid legal fees and budgets $5,000 a month for ongoing legal fees (all arising from his defence of this application).

[155] The statutory framework for DNA testing is found in s. 10 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. It states as follows:

10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence.

(2) The court may impose conditions, as it thinks proper, on an order under subsection (1).

(3) The Health Care Consent Act, 1996 applies to the blood test or DNA test as if it were treatment under that Act.

(4) If a person named in an order under subsection (1) refuses to submit to the blood test or DNA test, the court may draw such inferences as it thinks appropriate.

[156] The child’s motion seeks leave for DNA testing with two conditions attached to the order: immediate compliance and priority cooperation, and that the respondent pay the entire costs attendant to the testing and the preparation of a report.

[157] The respondent does not want to submit to DNA testing because he says he does not want to “offend the terms of the Agreement”. Para. 8 of the Agreement states that neither party will seek a declaration of paternity, unless the other party breaches the agreement. The respondent alleges in para. 8 of his Answer that the litigation is being driven by JM who is seeking to circumvent the terms of the Agreement. Despite this allegation that JM has breached the Agreement, he claims he would offend the Agreement if he consented to DNA testing.

[158] On day two of the motions, the respondent stated for the first time, that if the court grants leave for DNA testing under s. 10 of the Children's Law Reform Act, he will exercise his statutory right to refuse testing. While the respondent has the statutory right to refuse testing, he offers no evidence to explain why he will not submit to DNA testing. It seems that once again he falls back on the Agreement that does not bind the child.

[159] In view of this position, the child asks the court to draw an adverse inference against the respondent and make a declaration pursuant to s. 4 of the Children's Law Reform Act that the respondent is a person recognized in law to be the father of the child. Section 4 states:

4. (1) Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child.

(2) Where the court finds that a presumption of paternity exists under section 8 and unless it is established, on the balance of probabilities, that the presumed father is not the father of the child, the court shall make a declaratory order confirming that the paternity is recognized in law.

[160] Section 8 (1) 6 of Children's Law Reform Act states as follows:

8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:

9. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

[161] The primary objective of the Family Law Rules is to deal with cases justly (Rule 2) and the court has a duty to promote this primary objective. Rule 2 (3) states that 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.

[162] The Family Law Rules also state that the court shall promote the primary objective by “active management of cases”. I am the judge assigned to hear all motions and the trial in this application. The issue of parentage is critically important. It should be dealt with in accordance with Rule 2.

[163] Given the respondent’s clear position that he will refuse to submit to DNA testing if an order is made, it is open to the court to consider the child’s request to make a declaration now pursuant to s. 4 of the Children's Law Reform Act. This is what the child requested in court after the respondent stated his position. She seeks this relief in her application. The respondent did not object to the child’s request that the court consider the request for the declaration on this motion. Proceeding to decide this request now follows the primary objective of the Family Law Rules.

declaration of parentage

[164] It is open to the court to draw “such inferences as it thinks are appropriate”. I have considered the totality of the evidence. Based on this evidence, it is appropriate to draw an adverse inference against the respondent, find that he is the father of the child and issue a declaration that the respondent is recognized in law to be the father of the child.

[165] There are very few reported decisions dealing with a request for a declaration under s. 4 of the Children's Law Reform Act. The burden is on the party seeking the declaration to prove on a balance of probabilities that the man alleged is the father of the child.

[166] It is important to emphasize that the evidence on this issue comes from the respondent and it is not disputed. The facts of this case are distinctly different from the few reported decisions. This is not case like D.S. v. M.M., 2008 ONCA 772 or K.M.A.B. v. B.T., [2003] O.J. No. 4770 where in each case there were two men who claimed to be the father.

[167] Much of the respondent’s evidence that I rely upon has already been reviewed in these reasons. Given the importance of this declaration, I will review the evidence again.

[168] The respondent and JM dated during the months of April, May and June 1998. They had sex approximately six times. JM called the respondent in October and told him that she was pregnant with his child. The respondent was shocked because the pregnancy was not planned and as he states “we had taken precautions”. He does not provide any details of the precautions. The child was born on […], 1999, about 9 months after their brief relationship.

[169] The respondent had doubts about the paternity of the child. He does not offer any evidence as to why he had doubts except to say that they had taken precautions. Although he had doubts, he did not take any steps to have DNA testing. There is no evidence that the respondent even discussed DNA testing with JM. Instead, he tried to discuss with JM his “future role in the child’s life”.

[170] The respondent was “happy to support the child financially” and “wanted to be an active and engaged father”. JM refused. The respondent says that JM was abusive and threatening to him and said that if he pursued a role in the child’s life, she would make false allegations of sexual assault against him. After these threats were made, he never saw JM again.

[171] The respondent was not deterred. He retained a lawyer and brought a motion seeking information about the child’s birth, reasonable access, joint custody and an order restraining JM from leaving the country. When JM continued to refuse his requests, he abandoned his motion and made “the extremely difficult decision” to sign the Agreement with JM. As noted, he paid her a total of $47,000.

[172] In February 2013, the child contacted the respondent’s family. The child’s application was commenced in September 2013. The first step that the respondent took was to serve a motion. He sought an order to seal the court file, initialize the names of the parties and prevent the child from contacting his family. He did not seek an order for DNA testing. In his supporting affidavit, he reviews the doubts that he had in 1998 about whether or not he was the child’s father. It remains to this day a bare assertion of doubt.

[173] As set out above, the respondent and his partner are concerned that their three children may have a difficult time understanding that their father has another child. They are particularly concerned about the impact on the eldest child. They sought guidance from a therapist who suggests that publicity might cause psychological damage. The respondent relied on this evidence to support his motion.

[174] I do not minimize the concern that the respondent and his partner have for their children. However, if the respondent doubts that he is the child’s father and is concerned that publicity might cause his children psychological damage, he should have undergone DNA testing immediately. The court file is not sealed. If the respondent is not the father then the risk of psychological damage from publicity ends. DNA testing would provide a definitive answer.

[175] The child offered DNA testing at the outset. However, the respondent continually refuses such testing.

[176] At the case conference before Herman J. the issue of paternity was discussed. The respondent was invited to have DNA testing. The child has always been willing to have DNA testing. In her affidavit dated November 10, 2013, she states:

If my biological dad is questioning if he is the birth father, as he seems to suggest in the 2^nd^ line of paragraph 14 of his affidavit, I will agree, as I stated at the beginning to DNA testing so that we are both 100% sure of who is my birth father.

[177] The respondent did not respond to the child’s offer to have DNA testing. Counsel for the child raised the paternity issue in letters that he exchanged during November 2013 with the respondent’s counsel. Excerpts from these letters are set out above at paras. 70-73.

[178] It was reasonable based on these letters for the child to assume that there was no issue concerning the respondent’s paternity. The respondent never replied to Mr. Wilson’s November 29, 2013 letter. The application continued and the child and her counsel reasonably understood that paternity was not an issue. As the child states in her affidavit “[w]e took those communications to mean that the Respondent had decided DNA testing was not necessary because he accepted to not contest paternity.”

[179] Around October 2014, the respondent raised the issue of paternity again. This is one of the material changes that I dealt with above.

[180] I have considered the totality of the evidence. I am satisfied on a balance of probabilities that the respondent is the child’s father. The respondent makes a bare assertion that he has doubts about whether he is the child’s father. He paid for a lawyer and sued for custody and access. He was “happy to support the child financially” and “wanted to be an active and engaged father”.

[181] When his efforts to secure a role in the child’s life failed, he agreed to pay JM a total of $47,000. All of these steps are consistent with the finding that the respondent is the child’s father. A reasonable person would not take these steps if there really was a doubt about parentage.

[182] There is more evidence that supports the declaration. The respondent continually refuses requests for DNA testing. He allows the child and her counsel to assume that he is not disputing parentage and then many months later he raises the issue again. He is clearly not serious about disputing parentage. If there was a real basis for questioning his paternity, he would have had DNA testing before deciding to pay JM $47,000, before deciding to sue for custody and access, before spending in excess of $100,000 in legal fees and before agreeing to pay the child $1,633 a month (not as child support). Instead, the respondent holds tight to his position that the child is bound by the Agreement and he has no obligation to pay child support, even though he acknowledged in the Agreement that “the law does not permit a child’s rights to financial support to be released”. His actions are those of a person who is trying to avoid the inevitable conclusion: he is the child’s father.

[183] In summary, I make the following order:

(1) Pursuant to 8 (1) 6 of Children's Law Reform Act D.G.C. is found to be the father of C.M.M.

(2) Pursuant to s.4 (2) of the Children's Law Reform Act a declaration is issued that D.G.C. is recognized in law to be the father of C.M.M.

interim disbursements

[184] The child seeks an order under Family Law Rule 24(12) directing that the respondent pay $50,000 for interim disbursements, payable to her counsel Wilson Christen LLP. She requires this money for legal and expert fees.

[185] Rule 24(12) states as follows:

The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees.

[186] Rule 24(12) is discretionary. In exercising discretion under rule 24(12), the court must ensure that the primary objective of fairness as set out in rules 2(2) and (3) is met. Specifically, the court must deal with cases justly and ensure that the procedure is fair to all parties.

[187] I agree with the court in Stuart v. Stuart, 2001 CanLII 28261 (ON SC), [2001] O.J. No. 5172 at paras. 9-13 as follows:

9. … The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

10. An order under section 24(12) should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.

11. Certainly the proof of the necessity of interim disbursements would be critical to the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.

12. The claimant must demonstrate that he or she is incapable of funding the requested amounts.

13. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.

[188] As Mesbur J. stated in Ludmer v. Ludmer, 2012 ONSC 4478 at para.14, “[o]ne of the primary themes of the case law is that orders may be required in order to ‘level the playing field’ between the litigants.”

[189] It is the respondent’s position that the court should consider the “framework” of this application when assessing the child’s request for expenses. By “framework” he means the fact that the mother JM did not bring this application for child support. Instead, it is the child that is pursuing the application and JM has played no role. (Child support of course is the child’s right). As a result of this “framework”, the respondent complains that a dispute has arisen regarding the need for a litigation guardian and the respondent has incurred fees. As well, the respondent says that because JM did not bring this application, he lacks information about her financial circumstances.

[190] I fail to see how this is relevant. JM’s financial circumstances are not relevant to the respondent’s obligation to pay Guideline child support. The child has sworn an affidavit setting out the particulars of the serious deterioration in her financial circumstances. The situation is dire. The respondent could have questioned the child and he had two court orders allowing him to question JM. He has not questioned the child or JM. As a result, the evidence is uncontested.

[191] The respondent argues that if JM had brought this application the costs incurred would be a fraction of what they are today. He insists that throughout this application he (unlike the mother JM) has been here to assist the court. JM’s refusal to participate has occasioned “horrendous legal fees” for him. As a result, he says that he cannot afford to pay the child $50,000. His counsel argues that he has “run out of funds” and this is a burden that now “rests on his shoulders” and those of the child.

[192] He says that he had to represent himself in Divisional Court when that court heard the appeal. This was a one day court attendance. In contrast, he says the child has had a team of senior lawyers throughout this application who she has not had to pay. She has not paid her counsel because she has no money.

[193] He insists that everything would have been different if JM had brought this application. Does this mean he would have paid child support – the very relief that the child seeks? The answer is no. He would have continued to resist her right to child support and the matter would have gone to trial. When his counsel made this submission this is what he stated.

[194] The respondent argues that the playing field is either even or uneven against him. Such a position is unsupportable. This playing field is uneven against the child.

[195] The child should not have to rely on the generosity of her counsel to represent her without payment. The respondent has had the ability to pay counsel. As of February 17, 2015, he had paid $115,000 in legal fees and he budgets to pay $5,000 a month in legal fees.

[196] The respondent is the one responsible for unnecessarily complicating his financial circumstances. The playing field becomes even more uneven if the child has no ability to pay an expert to scrutinize and assess the reliability of the respondent’s documents, whether they are complete and then determine the respondent’s income for the purpose of child support. The child has a clear need to retain an expert.

[197] The respondent’s argument on this issue is devoid of any merit. He is simply disingenuous. In the face of his failure to make full and fair disclosure, he cannot say that he is assisting the court. His financial statement contains so many holes and inconsistences that it is unreliable. He is creating road blocks to a resolution because he has not been forthcoming. This behaviour runs contrary to the primary objective of the Family Law Rules – “to enable the court to deal with cases justly”.

[198] There is no evidence that the respondent has “run out of funds”. To the contrary, he has the ability to pay and I make this finding of fact on the basis of the financial evidence that I have already reviewed.

[199] The playing field in this case is not level. The child’s dire financial circumstances have been reviewed earlier in these reasons. I add the following evidence from the child:

37. Given the changes in my circumstances this past year and the delay in this proceeding, I am in need of interim disbursements in the amount $50,000.00.

38. I have no funds and I am not able to pay my lawyers, let alone anyone to help assess his financial circumstances in light of the fact that he has not made the financial disclosure that Justice Wilson ordered him to make.

39. I am at a distinct disadvantage because I have no money and no way of getting money in order to fund this litigation. My mother has no money. And, she won’t talk to me about this proceeding because she is afraid, as she once told me, that she will have to pay back the $37,500.00 which she certainly does not have.

[200] The child has not been able to pay the fees of her counsel nor can she afford to pay the fees of the valuator that has been retained to assist her (Melanie Russell of Kalex Valuations Inc.). Ms. Russell estimates that her professional fees could be in the range of $50,000.

[201] The child needs the assistance of counsel and an expert. Her request is reasonable. The respondent shall pay the child $50,000 for expenses. This amount is payable as follows: $25,000 by April 30, 2015 and $25,000 by May 15, 2015. The funds shall be made payable to Wilson Christen LLP in trust to be used to pay for the expert and legal fees.

Restraining Order

[202] The respondent motion’s before Justice D. Wilson requested a restraining order against the child. The issue is dealt with at para. 31 of Justice D. Wilson’s reasons where she states “In the circumstances and in light of my order for initializing of the file in order to prevent harm from occurring to the children of the Respondent, it is appropriate that an order be made preventing the Applicant from any contact with the family of the Respondent without his consent.”

[203] The Wilson order states in para. 2 “The Applicant is hereby restrained for contacting any member of the Respondent D.C.’s family either directly or indirectly, without his consent.”

[204] The statutory authority for issuing a restraining order is not reflected in the respondent’s notice of motion, the reasons of Justice D. Wilson or the Wilson order.

[205] A restraining order may be made under ss. 40 and 46 of the Family Law Act or s. 35 of the Children’s Law Reform Act. The sections in the Family Law Act do not apply to the facts of this case. If a restraining order is made against a person, it must be issued in a “form prescribed by the rules of court”. Form 25F is the form for a restraining order. It was not issued in this case.

[206] In effect, Justice D. Wilson issued a non-contact order, not a restraining order.

[207] The child has complied with the Wilson order. She has not contacted or attempted to contact “anyone to do with the Respondent or his family” and she has not threatened to do so.

[208] The only contact the child has ever made with any member of the respondent's family was 2 years ago, in February 2013, when she sent a letter to the respondent's mother, asking her to assist in getting financial help from the respondent. Even in this letter, the child was clear that she did not wish to publicize the situation, stating:

I am choosing to involve you as a way of avoiding a potentially confrontational public situation with my father your son, D.

[209] The child did not receive a response to this letter. She states that she followed up by leaving her a polite voicemail asking if she had received her letter. The child left her telephone number and asked her to return her call. The child made no other attempts to contact the respondent’s mother or any other member of the respondent's family.

[210] The child wishes to vary para. 2 of the Wilson order as follows:

Upon the Applicant filing with this court an Undertaking in accordance with the document at Schedule “A” to this Order, paragraph 2 of the January 24, 2014 Order is vacated.

[211] The child has signed the Undertaking. It was provided to the court during the hearing of the motion. It has been witnessed by her counsel. It states as follows:

I, C.M.M., undertake to the Court that I will have no contact, direct or indirect with D.G.C. or any member of D.G.C.’s family without his prior written consent.

I, C.M.M., acknowledge, that I understand the word “undertaking” to mean a legal promise to the Court and to the parties, and that if it is breached, the Court will consider the breach and impose such remedy as is appropriate having regard to my failure to honour my promise to the Court and the parties.

[212] When the Wilson order was issued the trial was imminent. This is no longer the case. The child is very concerned with the order that has been made against her and wishes it to be vacated. She explains her reasons as follows:

The restraining Order had made me feel like I have committed a crime. I am constantly worried that if someone (like a teacher or principal at my school) finds out that this Order exists, I will be considered to be a menacing kind of person, and that causes me a lot of stress.

I am also worried that this kind of Order will become information known or potentially available should I apply to school programs, summer jobs, or college. Some of the applications I have seen ask for information of any previous court proceedings and, or court orders, or contacts with the court or authorities.

Now that a trial is not proceeding as it was originally scheduled to occur immediately, this Order feels like an indefinite sentence. I undertake, understanding that to mean a personal promise to the Court, that I will have no contact with the Respondent or anyone in his family. I have seen him in the Court Room with his wife. I have had no contact with him or her at any of the times that we have been in close proximity with one another.

[213] The respondent appears to agree that a “restraining order” as is permitted under s. 35 of the Children’s Law Reform Act was never issued by Justice D. Wilson and therefore para. 2 of the Wilson order should be varied.

[214] He agrees to vary the wording of para. 2 of the Wilson order. It is his position that it be varied so that it repeats the following words in the reasons of Justice D. Wilson: “an order be made preventing the Applicant from any contact with the family of the Respondent without his consent.”

[215] The proposed variation that the child requests is preferable. It is accompanied by her Undertaking and is clearer than what the respondent proposes. The Undertaking must be made subject to any contact between the parties and members of his family who continue to attend in court, or at any questioning if it takes place. This shall be added to the Undertaking that the child signs and files with the court.

[216] I order that the child serve the respondent with her signed Undertaking and file it with the court. It is to be placed in the Continuing Record with an affidavit of service. Upon doing so, paragraph 2 of the January 24, 2014 Order of Wilson J. is vacated.

motion to strike the respondent’s Answer

[217] The child brings a motion to strike the respondent’s Answer because he has not complied with the disclosure that he was ordered to produce in para. 7 of the Wilson Order.

[218] The extent of the respondent’s failure to comply is significant. While he may have delivered some additional disclosure during the motion, particulars were not given to the court. Subject to what he may have produced during or since the motion, he has not complied with the documents listed in Appendix “A” to these reasons.

[219] As is apparent from Appendix “A” that the extent of the non-disclosure is significant. The disclosure is essential to the ability of the child, her counsel and her expert to determine the respondent’s income for the purpose of child support.

[220] I have already reviewed the respondent’s non-compliance in the context of the material change that has occurred and his income for support. In considering the motion to strike the respondent’s Answer, I rely on my earlier review of his non-disclosure. It is important to repeat the key points:

(1) The Wilson order requiring disclosure was not conditional on the appointment of a litigation guardian.

(2) The respondent was ordered to exercise best efforts and comply as soon as possible.

(3) It is not open to the respondent to excuse his non-compliance by stating that, in his view, the child and her counsel have the “critical information they need to ascertain my income, should it be required to do so.”

(4) The respondent cannot ignore the disclosure order because the child’s counsel does not follow up with him asking for compliance.

[221] Full and frank disclosure is a fundamental tenet of the Family Law Rules. There is an obligation to provide complete, detailed and timely disclosure. See Boyd v. Fields, [2006] O.J. No. 5762 (S.C.) at paras. 12-14; Rizzo v Rizzo, 2001 CanLII 28119 (ON SC), [2001] O.J. No. 303 (S.C.) at para. 24; Spettigue v. Varcoe, [2011] O.J. No. 4917 (S.C.), at para. 15

[222] The Supreme Court of Canada has observed that non-disclosure of assets is the cancer of family law proceedings, Leskun v. Leskun, 2006 SCC 25 at para. 34, quoting Cunha v. Cunha, (1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. (2d) 93 (S.C.) at para. 9.

[223] The purpose of disclosure is not to engage in a game of "catch me if you can" (Sarafinchin v. Sarafinchin, 2000 CanLII 22639 (ON SC), [2000] O.J. No. 2855 (S.C.) at para. 14.)

[224] Family Law Rule 1(8) gives the court the power to strike the respondent’s Answer for failure to comply with a court order. It states:

(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.

[225] Noteworthy is the recent decision in Murphy v. Murphy, 2015 ONCA 69 at para 6. where the panel refused the respondent on the appeal an audience of the court, when he had not complied with prior court orders, including financial disclosure, and offered no explanation.

[226] The extent of the respondent’s disclosure has now grown because it is apparent from what he has disclosed that he has not been forthcoming in making all relevant disclosure.

[227] The respondent’s non-compliance is serious and he has no reasonable excuse. That said, “in a family law case, a party’s pleadings should be struck only in exceptional cases, where no other remedy would suffice” (See Puracaru v. Purcaru, 2010 ONCA 92 at pars. 47-48. See also Kovachis v. Kovachis, 2013 ONCA 663; Chiaramonte v. Chiaramonte, 2013 ONCA 641).

[228] During the motion the respondent expressed his intention to comply with the Wilson order. He agreed that 30 days was a reasonable period of time for him to complete his court ordered disclosure. Given the respondent’s assurance that he will comply with the order, he will be given until April 30, 2015 to do. At the child’s request, this part of the motion is adjourned to be brought back on in the event of failure to comply.

[229] It should be apparent to the respondent that additional disclosure is now required. Para. 8 of the Wilson order set out a procedure for further requests. If the parties cannot agree on the additional disclosure that is required, the dispute shall be directed to me as the case management judge.

conclusion

[230] I make the following orders:

(1) Pursuant to s. 8(1)6 of Children's Law Reform Act D.G.C. is found to be the father of C.M.M.

(2) Pursuant to s.4(2) of the Children's Law Reform Act a declaration is issued that D.G.C. is recognized in law to be the father of C.M.M.

(3) An income of $200,000 is imputed to the respondent for the purpose of calculating interim child support.

(4) The respondent shall pay interim Guideline child support in the amount of $1,633 a month to child C.M.M. born […], 1999.

(5) The interim child support is payable as of April 1, 2014 and shall be paid as follows:

(a) The respondent shall pay a lump sum of $9,798 in child support no later than April 20, 2015. This represents six months of child support (April 2014 through September 2014). This amount shall be paid directly to the child's counsel, Wilson Christen LLP in trust. Counsel shall release the money to the child and it shall be used solely for the purpose of child support.

(b) The respondent's obligation to pay child support from October 1, 2014 going forward shall be paid to the Accountant of the Superior Court of Ontario and held for the child and released to her under the Office of The Children's Lawyer Minors' Fund Program.

(c) The respondent's obligation to pay child support for the months October 1, 2014 through April, 2015 is payable in full on April 30, 2015. This covers seven months of child support and totals $11,431.

(d) Child support owing after April, 2015 is payable on the first day of each month.

(6) The interim child support order is made on a temporary without prejudice basis and is subject to any future order of the court. In particular, it is without prejudice to the child’s right to argue that a higher income should be used for child support on any future motion or at trial.

(7) The respondent shall pay the child $50,000 for expenses. This amount is payable as follows: $25,000 by April 30, 2015 and $25,000 by May 15, 2015. The funds shall be made payable to Wilson Christen LLP in trust and used to pay for the expert and legal fees.

(8) I order that the child serve the respondent with her signed Undertaking. The Undertaking shall state:

I, C.M.M., undertake to the Court that I will have no contact, direct or indirect with D.G.C. or any member of D.G.C.’s family without his prior written consent.

I, C.M.M., acknowledge, that I understand the word “undertaking” to mean a legal promise to the Court and to the parties, and that if it is breached, the Court will consider the breach and impose such remedy as is appropriate having regard to my failure to honour my promise to the Court and the parties.

This Undertaking is subject to any contact between me and D.G.C. that is required by the court or by questioning that takes place. It is also subject to any contact between me and members of D.G.C.s family who attend with D.G.C. at court or at questioning.

(9) The Undertaking and an affidavit of service shall be filed with the court and placed in the Continuing Record. Upon doing so, paragraph 2 of the January 24, 2014 Order of Wilson J. is vacated.

(10) The respondent shall comply with the disclosure set out in Appendix “A” and shall do so by April 30, 2015. If there are any issues with respect to the respondent’s disclosure, the issues shall be dealt with by the case management judge. The child’s motion to strike the respondent’s Answer is adjourned and may be brought back on should the respondent fail to comply with this order.

(11) If the parties cannot agree on costs, they shall exchange brief written submissions and deliver them to the court by April 30, 2015.

(12) The parties shall agree to a timetable for moving this application forward to trial and submit it to the case management judge by April 30, 2015. If they cannot agree they will submit their respective timetables to the case management judge and the court shall fix a timetable.

___________________________ C. Horkins J.

Released: March 19, 2015

Appendix A

(i) Complete annual financial statements for DGC Professional Corporation and DGC Professional Corporation No. 2 from date of inception of each to date.

(ii) Complete annual financial statements for Mathews, Dinsdale & Clark from 1999 to date

(iii) Personal ITRs from 1999-2005 and Notices of Assessment and/or Re-Assessment from 1999-2009 and 2013.

(iv) Agreement(s) relating to DGC's 5.18% partnership interest in Mathews, Dinsdale & Clark LLP.

(v) Documentation relating to the lawsuit(s) involving DGC and Mathews, Dinsdale & Clark LLP, and the settlement/resolution thereof (other than the August 27, 2012 Costs Decision of Justice Murray).

(vi) Supporting documentation for the expenses deducted by DGC against his professional income including professional fees (e.g., $79,008 in 2011, $222,049 in 2010).

(vii) Details and quantum of any personal expenses deducted by DGC against his professional income, in the legal partnership, by DGC Professional Corporation or by DGC Professional Corporation No. 2 from 1999 to date.

(viii) Details of any reimbursement of expenditures, or allowances paid to DGC by Mathews, Dinsdale & Clark LLP, DGC Professional Corporation or DGC Professional Corporation No. 2 from 1999 to date.

(ix) Detailed schedule of all activity in DGC's capital account at Mathews, Dinsdale & Clark LLP from January 1, 1999 to date/his withdrawal as partner.

(x) Detailed schedule of all activity in DGC's shareholder loan accounts at DGC Professional Corporation and DGC Professional Corporation No. 2 from the later of January 1, 1999 and the inception of the companies, to date.

(xi) Caseware or other detailed trial balances of DGC Professional Corporation and DGC Professional Corporation No. 2 from the later of January 1, 1999 and the inception of the companies, to date. (I expect that the Companies' external/public accountants will have Caseware documents.)

(xii) All statements (the Respondent has only provided a few personal account statements from February 2013/January 2015 and limited investment account statement) whether in DGC's personal name or joint with other individuals from January 1, 1999 to date for the following:

(xiii) bank accounts;

(xiv) investment accounts;

(xv) credit card accounts;

(xvi) line of credit and similar accounts.

(xvii) Copies of all applications for credit by DGC.

CITATION: C.M.M. v. D.G.C. and J.M., 2015 ONSC 1815

COURT FILE NO.: FS-13-18928

DATE: 20150319

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.M.M.

Applicant

– and –

D.G.C. and J.M.

Respondents

REASONS FOR JUDGMENT

C. Horkins J.

Released: March 19, 2015