Court File and Parties

Sawatsky v. Rizzo, CITATION: 2016 ONSC 3302 COURT FILE NO.: 3452/11 DATE: 2016-05-18 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jack Sawatsky, Applicant AND: Loredana Rizzo, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Patricia Lucas for Respondent; Applicant in person

HEARD: May 18, 2016 at Welland

Endorsement

[1] The underlying proceeding is the Respondent’s motion to vary an order for child support and access made by Henderson J. on December 6, 2013. The Respondent moved for a temporary variation of child support based on the Applicant’s 2014 income. I made the requested order at the hearing of the motions. The Respondent also moves to strike the Applicant’s answer for failure to attend at the examiner’s office for questioning that was ordered by Goodman J.

[2] I have ordered the Applicant to re-attend on a specified date to which both parties have agreed. It remains to determine the other consequences, if any, of the failure to attend in the first place. The Respondent wants me to strike the answer, or, in the alternative, to order a deposit of security for costs and to order costs thrown away and costs of the motion.

[3] Access to a child is in issue. Given that circumstance I cannot strike the answer: D.D. v. H.D., 2015 ONCA 409. I am also reluctant to order security for costs to a party who is defending a proceeding, although under Rule 24(13) of the Family Law Rules it appears that I could do so. The Applicant still owes the lump sum spousal support ordered by Henderson J. and the costs ordered in that case. There is documented evidence that he has been rigid and inflexible in dealing with the Respondent and that he has not promptly complied with many of the ancillary orders made by Henderson J. There is not, however a history of unsuccessful and irresponsible litigation comparable to the facts faced by my esteemed colleague in Izyuk v. Bilousov, 2015 ONSC 3684 (Pazaratz J.). It remains to be said, however, that today’s motions could have been avoided if the Applicant had attended the appointment or provided Ms Lucas with an explanation and a suggested new date. He could also have consented to the temporary adjustment in child support based on his changed income.

[4] Here I think it sufficient to do the following:

a. The Applicant is ordered to pay the Respondent, through her lawyer, $231.65 (the cost of booking with the examiner) within 7 days, failing which his Answer shall be struck; and

b. The Applicant is ordered to pay costs of $4,000 for the aborted discovery and today’s motions, forthwith.

c. Of these cost orders, $3,000 shall be considered to have been expended for the purpose of obtaining child support.

J.A. Ramsay J. Date: 2016-05-18