Susko v. Susko, 2016 ONSC 7092
CITATION: Susko v. Susko, 2016 ONSC 7092
COURT FILE NO.: FS-15-15249
DATE: 20161117
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bradley W. Susko, Applicant
AND:
Catherine Susko, Respondent
BEFORE: Hebner J.
COUNSEL: Bradley W. Susko, acting in person but not present
Catherine C. Susko, acting in person
HEARD: November 9, 2016
Ruling on Motion
Introduction
[1] The respondent mother has brought a motion seeking several heads of relief which can be summarized as follows:
The mother has moved to strike out the applicant father’s claim for financial relief as a result of his failure to comply with his obligations under the rules, three previous orders concerning disclosure of documents and orders that he pay child support and costs.
The mother has requested an order dealing with access issues, namely Christmas access and haircuts.
The mother has requested an order protecting the remaining proceeds of sale of the matrimonial home currently held in trust pending a final determination of the financial issues.
Finally, the mother has requested an order detailing steps to be taken to bring the remaining issues to a conclusion.
Scheduling of this motion
[2] This motion was scheduled, by the mother, to be heard before me as the case management judge at 10:00 a.m. on November 9, 2016. The mother served her notice of motion on October 12, 2016. Along with that, she served an affidavit sworn October 11, 2016. The mother served a further affidavit sworn October 31, 2016 and an amended and restated notice of motion dated November 3, 2016. Lastly, the mother provided a final affidavit sworn November 3, 2016.
[3] The father has not provided any responding materials whatsoever. Sadly, the parties lost a mutual friend and the funeral was scheduled at the same time as the motion, namely November 9, 2016 at 10:00 a.m. The father requested an adjournment of the motion. The mother opposed the adjournment request and indicated that she would forgo her attendance at the funeral in favour of the motion proceeding. As a compromise, I rescheduled the motion to 12:30 p.m. The mother attended court to deal with the motion immediately after the completion of the funeral. The father did not attend. In his communication with the trial coordinator, the father indicated he would not be attending on the motion.
[4] The motion proceeded in the father’s absence.
Background
[5] This action was commenced by way of Application of the father on March 23, 2015. The principal issues involved the parties’ infant son, Lucas Grayson Susko, born June 6, 2014. In addition to claiming equal parenting time with Lucas, the father claimed child support, spousal support, an equalization of net family property, possession of the matrimonial home and related relief. The respondent mother served and filed her Answer dated May 8, 2015. In it, she claimed custody of Lucas, child support, an equalization of net family property, possession of the matrimonial home and related relief. Since then, this action has taken on a life of its own.
[6] There are no less than six volumes of the continuing record containing motions and affidavits filed by the parties. By the time I was appointed as case management judge in October 2015, the parties had been before the court on motions on at least six separate occasions before four different judges. They had the benefit of an all day case conference before King J. on July 29, 2015. After I became case management judge, the case management conference took place on October 9, 2015 and the first motion before me took place on December 16, 2015. There have been several additional motions since then, with this motion being the most recent. This is a high conflict, acrimonious case and Lucas is at the centre of it.
Motion to Strike the Applicant Father’s Pleadings
[7] The respondent mother brings her motion to strike the father’s pleadings under rule 1(8) of the Family Law Rules, O. Reg. 114/99. That rule provides:
1(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.
Non Compliance with Orders
[8] The father has not complied with a number of orders. Particulars are as follows:
- On July 29, 2015, King J. made an order for financial disclosure. Specifically, he ordered that the parties make the following disclosure to each other;
(1) For each bank, investment, credit card, debt and other account held at the date of separation or any time during 2014, account statements for the 3 years preceding the date of separation;
(2) For each financial institution at which deposits\investments were held at the date of separation or at any time during 2014, a list of all accounts held in the name of, or in respect of which the party is the designated account contact;
(3) Letters from the life insurance companies for policies owned by them indicating policy terms, coverage and standing and whether there is any cash surrender value;
(4) Financial statements and tax returns for any business conducted by them for 2012 – 2014;
(5) United States and, to the extent not already provided, Canadian tax returns for 2012 – 2014; and
(6) Net family property briefs including, for greater certainty, all debts at relevant dates, including student loans, IRS and CRA debt.
A copy of the order of King J., dated July 29, 2015, is attached as Schedule ‘A’.
- On December 16, 2015, I heard a motion for various relief, including a request by the respondent mother for financial disclosure. In my decision released January 4, 2016, I ordered the following disclosure:
(1) Both of the parties shall use their best efforts to provide, to the other, proof of outstanding debts as at the date of marriage;
(2) The respondent shall provide to the applicant copies of receipts or other documentary proof that she is engaging in therapy and/or counselling;
(3) Both of the parties shall provide to the other a list of all prescribed medications they have received from the date of separation to date;
(4) The applicant shall provide to the respondent a complete copy of his 2012 income tax return with all attachments and schedules;
(5) The applicant shall provide to the respondent a copy of his 2014 notice of assessment;
(6) The applicant shall provide to the respondent proof of his job search efforts (including copies of all applications, advertisements and acknowledgement of receipt and rejection letters from potential employers) from the time period of being unemployed to present and ongoing until resolution. The respondent shall not use this information other than in the course of this action. Specifically, the respondent shall not contact prospective employers of the applicant;
(7) Both parties shall provide to the other full copies of all pages of all monthly bank, investment and credit card statements for all financial institutions from January 1, 2012 to present and ongoing until resolution;
(8) Both parties shall provide to the other proof of monthly expenses listed on their sworn financial statements filed in this action;
(9) The applicant shall provide to the respondent a copy of his lease agreement for 527 Reaume Rd., LaSalle, ON;
(10) Both parties shall provide to the other copies of any and all applications for loans, credit cards or any other borrowing from January 1, 2014 to the present and ongoing until resolution;
(11) The applicant shall provide to the respondent copies of any receipts for therapy and/or counselling issued to him by Frank De’Angelis for 2014 and 2015;
(12) The applicant shall provide to the respondent an updated statement of arrears with the Family Responsibility Office for support claimed in respect of his two older children, Zachary, born February 24, 2000, and Robyn-Jean, born July 18, 2001;
(13) Both parties shall provide to the other copies of documentation to substantiate values of assets and debts as at the date of marriage and the date of separation;
(14) The applicant shall provide to the respondent a copy of the solicitor’s reporting letter with all attachments received on the sale of the property located at 1096 Woodland Crescent, Belle River, Ontario (a property I am told was registered in the name of the applicant alone);
(15) Both parties shall produce to the other copies of any and all sale documents, including a reporting letter and all attachments, with respect to the sale of the property located at 2555 Maitland Avenue, Tecumseh, Ontario (a property I am told was registered in the name of both parties);
(16) The applicant shall provide to the respondent a copy of the promissory note respecting his personal debt owing to Jean Susko.
(17) The parties shall use their best efforts to ensure production of all documents occurs by January 23, 2016. The questioning of both parties shall take place on January 28 and January 29, 2016. The questioning shall take place on these dates whether the disclosure has been completed, or not.
A copy of my reasons is attached hereto as Schedule ‘B’.
On March 10, 2016 the matter came back before me to deal with a number of issues, including that of disclosure. Mr. Susko had not complied with the disclosure order of King J., nor had he complied with my disclosure order. In my endorsement, I noted “disclosure continues to be problematic, particularly for Mr. Susko, and the disclosure order that I made on December 16, 2015 has not been fully complied with.” I made a further disclosure order, copy of which is attached hereto as Schedule ‘C’. At that point in time, I was still giving Mr. Susko the benefit of the doubt. I had every hope and expectation that he would comply with my disclosure order. I was wrong.
On the motion before me on December 16, 2015, I noted that a child support order had not been made for Lucas even though it had been 10 months since separation. The applicant father had still not provided income disclosure. He orally advised that he was employed with an income of $62,400. I made an order that he pay child support in the amount of $568 per month for Lucas.
On the motion before me on March 10, 2016, Mr. Susko had still not provided any income information. He orally advised that he had signed a consulting contract. He had not provided a copy of that contract. He indicated that he invoiced his employer, Lakeside Produce, in the amount of $3,500 per week and that he earned his income through a corporation. Annualized, the income for Mr. Susko’s corporation is $182,000. As I did not have Mr. Susko’s tax returns, he was earning his income through a corporation and had not disclosed the expenses, and Mr. Susko orally advised that the contract provided for a limited term, I assessed Mr. Susko’s income at $120,000 per annum for child support purposes. This was the amount requested in the respondent’s notice of motion and is the amount Mr. Susko has historically been able to earn. I ordered that Mr. Susko pay child support for Lucas in the sum of $1,037 per month plus the additional sum of $419 per month being his approximate after-tax contribution towards Lucas’s day care.
Mr. Susko is in arrears of his child support obligations. He currently owes the sum of $5,882. The last payment the mother received was in September 2016. Mrs. Susko has been advised by the Family Responsibility Office of difficulties in collection. The Family Responsibility Office sent a support deduction order to Lakeside Produce in an attempt to collect the child support payable. Lakeside Produce informed the Family Responsibility Office that Mr. Susko works as an independent contractor and so a garnishment of his wages does not apply. The result is that the support remains unpaid.
On September 30, 2016 I issued a ruling on costs of the various motions brought by the parties. I ordered that Mr. Susko pay to Mrs. Susko costs in the sum of $8500, inclusive of disbursements and HST. I ordered that the costs are deemed to be costs arising in relation to child-support and enforceable by the Family Responsibility Office. Those costs have not been paid.
[9] Mr. Susko has not complied with any of the disclosure orders that have been made against him. He has not provided his income information for 2015 and 2016. He has not provided proof of his job search efforts. He has not provided the required information from his counsellor and his list of medications. He has not provided a net family property statement with backup documentation. He has not complied with his undertakings. Mrs Susko, on the other hand, has complied with all of her disclosure obligations, whether ordered or under the rules, and would like to proceed to a final determination of all the issues.
Analysis
[10] Full and complete financial disclosure is essential in family law litigation. A party must make full and honest disclosure of all relevant financial information in order to protect the integrity of the process. The scheme for full and complete financial disclosure in the Family Law Rules is clear and consistent. So too are the sanctions. As financial disclosure is essential to the process, the sanctions are significant.
[11] The failure of the applicant, Mr. Susko, to provide the ordered disclosure has caused significant prejudice to the respondent mother. A significant number of the court appearances and resulting orders were as a result of the applicant’s refusal to provide disclosure. In addition, the lack of information on critical issues, such as the applicant’s income, hampers the decision-making process for the court. Mr. Susko has received several indulgences. Yet he has been persistent and determined in his refusal to comply with the disclosure orders.
[12] The proper approach on a motion to strike pleadings when dealing with a noncomplying party is set out by Mitrow J. in Kloc v. Kloc, 2012 ONSC 4431 and Hooper v. Fretwell, 2013 ONSC 6586. There are 3 steps:
The court must ask whether there is a triggering event that would allow it to consider the wording of sub rule 1(8). That triggering event would be noncompliance with the court order in the case or a related case.
If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the noncomplying party by not sanctioning that party under sub rule 1(8). This discretion will only be granted in exceptional circumstances. The court’s decision whether or not to exercise its discretion in favour of a noncomplying party ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the noncomplying party.
In the event the court determines that it will not exercise its discretion in favour of the noncomplying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of sub rule 1(8).
[13] The remedy of striking of pleadings has the most drastic impact for a party that is not in compliance with court orders. It should only be imposed in the most egregious of circumstances. To determine if the sanction is appropriate in situations of nondisclosure, the court should consider the following issues:
What was the overall effort to complete disclosure relative to the undisclosed items and what ratio does the completed disclosure bear to the undisclosed items;
Are the missing pieces of disclosure relevant to significant issues in the file or are they about issues that were to have become minor? Does the mover need this disclosure to proceed and would a court be hampered in adjudicating without it?
Was there and is there a realistic possibility of obtaining this disclosure? What is the cost of the disclosure relative to the overall quantum of money at risk? Is the disclosure available to the seeker?
Given the advances in the information in the case, has the request for missing disclosure become overreaching?
Were the orders concerning the disclosure sufficiently clear that the party ordered to provide the information would understand what was being sought?
Were the time frames for obtaining the disclosure reasonable? Did the seeker of the disclosure continue to pursue the disclosure and enforce the order?
Were the disclosure orders so onerous that a party could not reasonably locate and disclose the volume of material requested?
Is there a lesser remedy that would suffice? (Grenier v. Grenier (2012), 26 R.F.L.(7th)69)
[14] The orders for disclosure were exceedingly clear in this case. Mr. Susko has not provided the most basic of information such that the appropriate quantum of child support can be determined and the appropriate equalization calculation can be made. The overall amount of disclosure requested was not onerous. The respondent mother was able to gather and provide similar disclosure. As in the case of Grenier v. Grenier, although there were three orders, they merely repeat the same items with some additional disclosure. At the time the orders were made, the disclosure was all quite obtainable and the cost not onerous. The respondent mother sent letters reminding the applicant of the missing disclosure and requesting compliance repeatedly and the issue was raised during questioning.
[15] Applying the three-part test, the triggering event includes the applicant’s noncompliance with disclosure orders and the applicant’s failure to comply with the child support and cost orders. The history of this case discloses repeated refusals on the part of the applicant to comply with court orders. The failure on the part of the applicant to produce the most basic documents required is extraordinarily unfair to the respondent. The applicant’s contumelious behaviour leads me to the conclusion that there is no reasonable sanction other than striking his pleadings on the financial issues.
Access Issues
[16] The current interim arrangements are that the respondent mother has temporary custody of Lucas. The applicant father has access as follows:
a) on alternating weekends from 9:00 a.m. Saturday to 5:00 p.m. Sunday, with the weekends to be scheduled on the same weekends that the applicant has his 2 older children, Zachary and Robyn Jean, in his care; and
b) every Wednesday from 4:00 p.m. to 7:00 p.m.
[17] This year, Christmas Eve and Christmas Day take place on the applicant father’s access weekend. The evidence of the respondent mother is that the applicant celebrates Christmas with Zachary and Robyn Jean on December 24 until after dinner, at which time the two older children return to their mother’s home. The evidence of the respondent mother is that her family celebrates Christmas on December 25 and her family is travelling to her home from out of the country in order to celebrate Christmas. The respondent mother’s suggestion is that, for that Christmas weekend, the applicant’s access be changed to 10:30 a.m. on December 23 to 6:30 p.m. on December 24. The suggestion is a reasonable one and, as the applicant has filed no evidence of his Christmas plans, I am prepared to make the order suggested by the respondent mother.
[18] The respondent mother also requests an order that the applicant be restrained from cutting Lucas’s hair during access visits. Haircuts for Lucas have become a matter of contention between the parties. Mother’s evidence is that father cuts Lucas’s hair, whether he needs it or not, out of spite. Mother prefers for Lucas’s hair to be longer on top, particularly in the winter time.
[19] The respondent has filed copies of text communications between the parties dealing with haircuts and other child-related issues. The applicant’s disdain towards the respondent is evident in the text messages. He called her a “sneaky pig” and a “Chewbacca”. He accused her of being “drunk”. He raises the issue of Lucas’s hair in text messages in the context of angry outbursts. The following is an excerpt from one of the texts:
“I will never go less than 50-50 and you owe me a ton of money. I will never stop for what you’ve done. To abduct my child and falsely charge me is unforgivable. I’m fixing his hair tomorrow. Next time use a barber.”
[20] It is clear from the evidence filed that the applicant cuts Lucas’s hair because he knows the respondent does not want him to do it. Clearly, the applicant’s use of Lucas in this fashion is not in Lucas’s best interests.
[21] I am not prepared to make an order dealing with the child’s haircut. In my view, there are some orders that the court simply ought not to make, and one of them is an order restraining a parent from cutting his child’s hair. I do expect, however, that the applicant’s actions in this regard will factor into the determination of custody and access on a final basis.
Proceeds of Sale of the Matrimonial home
[22] On May 3, 2016, I partially dealt with the proceeds of sale of the matrimonial home. At that time, the sum of $110,747.16 was held in trust by Mousseau, DeLuca, McPherson, Prince, the solicitors acting on the sale. At the time of the parties’ separation, the matrimonial home was in the applicant’s name. I ordered that the applicant pay to the respondent the amount of $50,000 as an advance on the equalization payment and the payment be made from the proceeds of sale held in trust. I had previously ordered that the applicant pay to the respondent costs in the sum of $5,000 from the proceeds of sale of the matrimonial home. That left the sum of $64,581 in trust.
[23] At the time the home was sold, a writ of seizure and sale had been filed by the applicant’s former solicitor, Ms. Melville, in the amount of $41,166.81. Apparently, according to the evidence filed by Mrs. Susko, the Sheriff has attempted to enforce the writ of seizure and
sale. The law firm refused to pay the trust funds to the Sheriff and indicated, in a letter to the Sheriff:
“We are unable to comply with the notice of enforcement as the funds currently held in our firm trust account are held in trust for both Bradley Susko and Catherine Susko and to date there has been no determination as to the extent of each party’s interest in these funds.
Unfortunately the nature and extent of Mr. Susko’s entitlement to the net sale proceeds has yet to be determined, and is a contentious issue between the parties in the matrimonial proceedings. Until such time as this determination has been made, either with the consent of both parties or by the courts, we are unable to determine the extent of Mr. Susko’s entitlement to those funds, if any. Therefore we are unable to comply with the notice of enforcement.
The funds are also strictly impressed with the obligations of the writer to comply with an undertaking provided in order to allow for the completion of the sale of the residential property, which undertaking requires that all such trust funds be held for both Bradley Susko and Catherine Susko until such time as both Mr. and Mrs. Susko (or their counsel) provide written consents and directions for the release of such funds or, alternatively, until such time as the writer is in receipt of a specific court order with respect to the release of such funds.
[24] I agree that the funds must remain in trust until final resolution of the financial issues between the parties.
Steps to Bring the Matter to a Conclusion
[25] This matter needs to be resolved on a final basis. The continuation of this acrimonious litigation has only served to increase problems between the parties and put Lucas squarely in the middle of the fight. These parties, and Lucas, require finality.
[26] In so far as the financial issues are concerned, the respondent intends to bring a motion against Lakeside Produce for information on the applicant’s income. That motion may be brought, on notice to Lakeside Produce, in ordinary motions court before any presiding Justice. Thereafter, the financial issues shall be dealt with by way of an uncontested trial before me.
[27] In so far as the custody and access issues are concerned, a settlement conference is scheduled before King J. on January 13, 2017. In the ordinary course, after the settlement conference, King J. will direct the next steps. In the event that settlement conference does not take place as scheduled, for any reason, a case management conference shall be scheduled with me so that the issue of the final resolution of the custody and access issues can be dealt with.
Disposition
[28] For the foregoing reasons, I make the following orders:
The applicant’s claims for financial relief set out in his Application shall be struck.
The respondent’s claims for financial relief, set out in her Answer and as detailed below, shall be dealt with by way of an uncontested trial before me:
a) claim for child support, contribution towards special or extraordinary expenses and related relief;
b) claim for an equalization of net family properties;
c) the determination of the respondent’s entitlement to the proceeds of sale of the matrimonial home;
d) costs
e) pre-judgment interest
The applicant’s access to Lucas shall be suspended over the Christmas weekend, namely December 24 – 25. Instead, the applicant shall be entitled to access from 10:30 a.m. on Friday, December 23, 2016 to 6:30 p.m. on Saturday, December 24, 2016. Lucas shall be returned to the respondent at 6:30 p.m. on December 24, 2016.
The remaining proceeds of sale of the matrimonial home shall continue to be held in trust by Mousseau, DeLuca, McPherson, Prince pending further court order or agreement of the parties.
In the event the settlement conference on the custody and access issues now scheduled before King J. for January 13, 2017 does not take place, a case management conference shall be arranged with me so as to deal with the process for the resolution of these issues.
[29] The respondent requests costs of this motion on a substantial indemnity basis. Although she represents herself, she obtains assistance from her former solicitor, Brian Ludmer, for which she pays. She has paid Mr. Ludmer approximately $5,500 for assistance from May 2016 to the present. Much of those funds were paid for assistance in compiling the notice of motion and affidavit evidence required for this motion. In all of the circumstances, Mrs. Susko is entitled to her costs. I assess those costs at $4,000, inclusive of disbursements and HST. Accordingly, I make the following additional order:
- The applicant father shall pay to the respondent mother her costs of this motion fixed in the total sum of $4,000. The costs shall be deemed to be costs arising in relation to child-support and enforceable by the family responsibility office.
“original signed and released by Pamela L. Hebner”
Pamela L. Hebner
Justice
Date: November 17, 2016