CITATION: Hutcheon v. Bissonnette, 2017 ONSC 1108

COURT FILE NO.: 24/15 Guelph

DATE: 2017-02-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JUNE MARGARET HUTCHEON

Andrea Clarke, for the Applicant

Applicant

• and -

LEO BISSONNETTE

D. Ian Kilgour, for the Respondent

Respondent

HEARD: October 11, 2016, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] Ms. Hutcheon moves to have Mr. Bissonnette found in contempt of my order for disclosure dated December 8, 2015, for a penalty to be imposed, and for Mr. Bissonnette’s pleadings in his motion to change to be struck out.

BACKGROUND FACTS

The parties’ relationship

[2] June Hutcheon, the Applicant, is 54 years old (born July 29, 1062). Leo Bissonnette, the Respondent, is also 54 (born December 8, 1962). Ms. Hutcheon and Mr. Bissonnette met in 1981, when they were 19. In the summer of 1982, they began a common-law relationship, which ended three or, according to Ms. Hutcheon, 4 years later, in about 1985, when they were 22 years old.

[3] One child was born of the relationship, namely, Alice Bissonnette, born November 17, 1983. Alice is now 33 years of age. Mr. Bissonnette has moved to terminate his child support obligation in relation to her and to rescind arrears of support that have accrued since the parties consented to an order made by Justice Houston, in the Superior Court of Justice in Ottawa, on June 9, 1990.

[4] The present motion is to enforce Mr. Bissonnette’s disclosure obligations arising in connection with his motion to change Justice Houston’s Order.

The judicial proceeding leading to the final Order for child support

[5] Ms. Hutcheon commenced a proceeding in Ottawa by an Application issued in 1989 in which she claimed custody of Alice, and child support.

[6] On June 9, 1989, on a motion by Ms. Hutcheon for interim custody and interim child support, and a cross-motion by Mr. Bissonnette for interim access, Master Schreider made a consent order granting Ms. Hutcheon interim custody of Alice, subject to Mr. Bissonnette’s interim access at specified times. Additionally, on consent, Master Schreider ordered Mr. Bissonnette to pay Ms. Hutcheon child support in the amount of $350 per month beginning June 9, 1989.

[7] On August 21 and December 12, 1989, the parties signed Minutes of Settlement, and on January 9, 1990, Justice E.J. Houston made a Judgment in accordance with the terms of their settlement. The order directed the following:

a) Ms. Hutcheon was to have custody of Alice, subject to specified access by Mr. Bissonnette, including physical access on alternate weekends and telephone access.

b) Mr. Bissonnette was to pay child support to Ms. Hutcheon, for the support of Alice, in the amount of $350 per month, beginning September 1, 1989, until either Alice ceased to reside with Ms. Hutcheon, turned 18 and ceased to be in full-time attendance at school, became 23 years old, married, or died.

c) The amount of child support was to be increased annually on the anniversary date of the effective date of the Judgment (that is, September 1, 1989), beginning September 1, 1990, by the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada.

d) Mr. Bissonnette was to maintain life insurance of at least $50,000 and to designate Ms. Hutcheon as Trustee for Alice as the irrevocable beneficiary. He was to provide proof to Ms. Hutcheon, annually, that the life insurance policy remained in effect.

[8] Ms. Hutcheon acknowledged that she moved out of the Province of Ontario with Alice in 1993, and returned in 1999.

The Assignment of Support to the Ministry

[9] Ms. Hutcheon made two Assignments of child support in favour of the Minister of Community & Social Services (“The Ministry”), as follows:

a) An Assignment that began November 1, 1989, and ended December 31, 1989 (“the first Assignment”);

b) An Assignment that began March 1, 1990, and ended May 31, 1993 (“the second Assignment”).

[10] The Ministry sent a letter dated November 10, 2014, notifying Mr. Bissonnette that Ms. Hutcheon had advised the Ministry that arrears of child support in the amount of $72,771.89, and interest of $129,658.50, had accrued pursuant to Justice Houston’s judgment, from September 1, 1989, to November 16, 2005, and that the balance owing by him as of November 10, 2014, was $202,430.30.

The motion to change the final Order of Justice Houston

[11] On January 13, 2015, Mr. Bissonnette made a motion to change the order of Justice Houston, requesting that the child support owed to Ms. Hutcheon be fixed at nil as of January 11, 2015, and that the support owed to the Ministry also be fixed at nil. The total amount of arrears the Mr. Bossonnette currently owes the Minister pursuant to the Assignments is $13,930.61 as of February 19, 2015, as appears from an affidavit of Lorraine Phillips-Agard, an employee of the Ministry, sworn February 19, 2015.

[12] In the Change Information Form that accompanied Mr. Bissonnette’s motion to change, he asserts that Ms. Hutcheon breached the access terms of Justice Houston’s Judgment by leaving Canada without notice to Mr. Bissonnette on March 1, 1990, without providing a forwarding address or contact information to him.

[13] The Judgment of Justice Houston provided that the support order was to be enforced by the Director of Support and Custody Enforcement, and Mr. Bissonnette asserts that the Director never enforced the Order, and never communicated with him until November 10, 2014.

[14] Mr. Bissonnette states that Ms. Hutcheon made a deliberate choice to raise Alice without his support in order to deprive him of access. He states that Alice is now 31 years old and would not benefit in any way from a windfall of support payable to Ms. Hutcheon.

[15] Mr. Bissonnette states that he is of modest means, having raised other children in his home during the time that Alice was out of the jurisdiction. Additionally, he argues that the 14% interest charged on the arrears of child support is excessive.

[16] Ms. Hutcheon states that she did not notify Mr. Bissonnette of her departure from Ontario because he had not exercised access to Alice in the four years since their separation and had not provided any information to her as to his whereabouts. She states that she struggled to raise Alice without any financial assistance from Mr. Bissonnette, and continues to struggle financially with the cost of schooling for Alice.

[17] Ms. Hutcheon submits that it would be unconscionable to allow Mr. Bissonnette to shirk his responsibilities to Alice and to force Ms. Hutcheon to continue shouldering the financial burden alone. She is seeking an Order that he be required to pay all arrears owing at the rate of $1,334 per month until they are paid off.

a) The Case Conference and Order dated June 8, 2015

[18] The Case Conference in Mr. Bissonnette’s motion to change was held before me on June 8, 2015. Ms. Hutcheon made a motion, to be heard at the Conference, to transfer the proceeding to Ottawa, where she resides. Ms. Hutcheon was granted leave to bring a motion for a change of venue, if so advised, to be heard at the Settlement Conference. In the meantime, she was permitted to participate in the Conference by telephone.

[19] The parties agreed that Mr. Bissonnette’s motion should be expedited, subject to an opportunity being given to all parties to conduct questioning. Accordingly, I set a timetable that included the following steps:

i) The parties were to exchange Requests for Information by June 19, 2015, which they were to comply with by July 10, 2015;

ii) The parties were to exchange updated Financial Statements by July 16, 2015;

iii) The parties were to conduct questioning by July 17, 2015;

iv) The parties were to attend a Settlement Conference with me by telephone on July 21, 2015.

v) Mr. Bissonnette was to deliver his Trial Record and Document Book by July 23, 2015;

vi) Ms. Hutcheon was to deliver her Supplementary Trial Record, if any, and Document Book by August 7, 2015.

vii) The parties were to attend an Assignment court on August 31, 2015, to set a date for trail at the trial sittings beginning September 7, 2015.

[20] I directed that if any disputes arose in the implementation of my order, either party could apply to the court for directions, which could be by letter from counsel, for hearing by me by teleconference between 9 and 10 a.m. I reserved the costs of the conference to the settlement conference.

[21] Ms. Hutcheon delivered a Certificate of Financial Disclosure on June 25, 2015, together with an Affidavit in which she stated that the information contained her previous Form 13 Financial Statement sworn February 24, 2015, had not changed since that date.

Settlement Conference on July 7, 2015

[22] The Settlement Conference had to be accelerated from July 21 to July 7, 2015, and the parties stated that they had been unable to comply with the timetable set on June 8. Mr. Bissonnette delivered an Affidavit dated July 2, 2015, and a Financial Statement sworn July 13, 2015, in which he reported his income as $59,000, and his income for the previous year as $78,000. He stated that he was employed by Monster Mechanical Ltd. in Guelph. He stated that his annual expenses were $115,229.76, that he had assets worth $250,507, including a house in Guelph and a 2012 Hyundai car, and debts of $279,819.54, including a mortgage of $180,974.32, a Car Loan of $42,280, half of a Line of Credit, of which his share was $26,675.85, and approximately $55,000 of credit card debts. He stated that he was making all of his monthly payments on his debt, amounting to $4,500 per month (although his declared debts in his budget amount to approximately $3,700).

[23] Mr. Bissonnette produced a letter from Monster Mechanical Ltd., signed by “D. Bissonnette”, stating that due to a company loss for 2 years, and projected sales and expenses in 2015, Mr. Bisonette’s gross income was $59,000.

[24] The parties agreed that a Trial of an Issue would be helpful in disposing of or narrowing the issues in Mr. Bissonnette’s motion to change the final Order of Justice Houston, and in Ms. Hutcheon’s and the Ministry’s cross-motion to enforce the Order for child support. I therefore made an order for a trial of the following issues:

i) Whether Ms. Hutcheon had denied access to Mr. Bissonnette or unreasonably delayed enforcement of Justice Houston’s Order;

ii) Whether Ms. Hutcheon had made a representation to Mr. Bissonnette that she was not pursuing the claim for child support or arrears, or that there were no arrears owing; and

iii) Whether Alice is no longer a “child of the marriage” dependent on her parents and entitled to child support;

And whether any of those factors should preclude an Order enforcing the child support ordered by Justice Houston on January 9, 1990.

[25] I ordered the following new timetable:

i) The Ministry was to produce its file in relation to Ms. Hutcheon, including her application for, and receipt of, benefits, and the enforcement of support payable by Mr. Bissonnette, not including the files of the Family Responsibility Office, by August 7, 2015.

ii) Ms. Hutcheon and the Ministry were to deliver any further affidavit evidence by August 13, 2015.

iii) Mr. Bissonnette was to deliver his response to Ms. Hutcheon’s Request for Information, and the parties (not including the Ministry) were to delivery updated Financial Statements in Form 13.1, income tax returns along with all schedules and attachments, and Notices of Assessment from the Canada Revenue Agency for the years 2012, 2013, and 2014, by July 16, 2015.

iv) Mr. Bissonnette was to deliver his responding affidavits by August 18, 2015.

v) The parties were to conduct cross-examinations on affidavits in Peterborough, or such other place as the parties agreed upon, between August 19 and 21, 2015.

vi) The parties were to exchange factums and Books of Authorities by September 21, 2015.

vii) The trial of the issues were to be heard for the full day on September 28, 2015.

viii) The matter was to return for a further Settlement Conference after September 28, 2015, on a date to be arranged with the Trial Office.

[26] The costs of the conference were reserved to the judge who would preside on September 28, 2015.

[27] Mr. Bissonnette delivered a Financial Statement dated July 13, 2015.

c) Ms. Hutcheon’s motion to have Bissonnette found in contempt

[28] On November 30, 2015, Ms. Hutcheon delivered a motion for an Order finding Mr. Bissonnette in contempt for failing to comply with her Request for Information dated June 19, 2015, by July 10, 2015.

[29] Paragraph 7 of my Order dated June 8, 2015, stated:

The parties shall exchange Requests for Information in Form 20 by June 19, 2015, which shall be complied with by July 10, 2015. If any documents requested is not produced by the date specified in this paragraph, the recipient of the Request for Information shall, by that date, produce an affidavit setting out:

i) Whether the document exists, or did exist;

ii) Whether it was in the parties’ possession, power, or control and, if so, whether it still is or, if not, when it ceased to be, and under what circumstances; and

iii) The non-party, if any, believed to have possession of the document, and attaching the request sent to the non-party for it, and contact information, and the response received;

iv) The reason it was not produced.

In any event, the recipient of the Request for Information shall, within 7 days of receiving a request and draft direction, sign and return the Direction, authorizing the non-party to produce the document, at the recipient of the Form 20’s expense, directly to the solicitor for the party who delivered the Form 20.

[30] Ms. Hutcheon tendered the Request for Information that she had served on Mr. Bissonnette. It states:

To: Leo Bissonnette

This is a request for information in writing under subrule 20(3) of the Family Law Rules.

I request that the information be provided within 21 days by:

As per the Order of Justice Price dated June 8, 2015, provide the document being requested by July 10, 2015, or an Affidavit to go in accordance with the Order.

The information that I am requesting is as follows:

1. Income tax returns for the previous seven years;

2. Notices of Assessment for the previous seven years;

3. Proof of how the Respondent is paid by his employer, whether it is paystubs, cash, or a combination of both for the past three years;

4. The Respondent’s three most recent paystubs;

5. Proof of receipt of cash payments for the past three years;

6. Proof of how cash is dealt with when received from customers;

7. Proof of whether the Respondent has an interest in the company, Monster Mechanical Limited;

8. If the Respondent does have or has ever had an interest in the company, complete financial statements of Monster Mechanical Limited for the time he held an interest;

9. Copies of the Respondent’s bank statements and credit card statements, for all bank accounts held for the past three years, including any investments;

10. Copies of documents pertaining to the Respondent’s bankruptcy, including his tax return and notice of assessment for that year, and proof of discharge;

11. Proof of whether the Respondent’s spouse holds an interest in Monster Mechanical Limited;

12. An updated sworn financial statement;

13. A recent mortgage statement for all properties in which the Respondent holds an interest, including a spousal interest;

14. Property tax bills for all properties in which the Respondent holds an interest, including a spousal interest;

15. Proof of any life insurance;

16. Proof of any pension;

17. Copies of all credit card, line of credit, and mortgage applications for the past three years that include the Respondent’s income to assess eligibility; and

18. Copies of the Respondent’s spouse’s bank statements and credit statements, for the past twelve months.

19. Proof of where the Respondent has resided for the past 25 years.

[31] Mr. Bissonnette responded to Ms. Hutcheon’s motion with an affidavit sworn December 1, 2015. He stated, with reference to Ms. Hutcheon’s Request for Information, that he had responded with an affidavit sworn July 13, 2015, which he attached. He continued:

34. My affidavit made it clear that requests for information made by me would not be complied with by third parties.

35. I verbally requested information from third parties and was told that they did not want to release that information. I suppose that I could provide a direction that would end up with the same result but I am not in contempt.

[32] Ms. Hutcheon’s lawyer, Andrea Clarke, sent a letter by fax to Mr. Bissonnette’s lawyer, Mr. Kilgour, on October 26, 2015. It stated that she had not received any of the documentation set out in my Order dated June 8, 2015, or in response to her client’s Request for Information dated June 19, 2015, a copy of which she re-attached. She advised Mr. Kilgour that unless she received the documents required by the Request within 10 days, she would be bringing a motion seeking an order that Mr. Bissonnette be found in contempt and striking his pleadings.

[33] Mr. Bissonnette’s affidavit sworn July 13, 2015, stated the following:

i) He did not have his long form income tax returns prior to 2012. He filed his returns but they were either destroyed or disposed of. He stated that he could provide his long form income tax returns for 2012, 2013, 2014.

ii) He did not have his notices of assessment prior to 2011. They were either disposed of or destroyed. The information, he said, was under the control of the Canada Revenue Agency.

iii) He was paid by cheque. Records were kept on a spreadsheet which would be provided. He attached his T4 slips.

iv) He did not receive a paystub, but attached copies of his last three cheques. He stated that there were no cash payments.

v) He could provide a copy of the shareholder’s registry for Monster Mechanical Ltd. He was not authorized by the shareholders and directors to release 7 years of financial statements of the corporation. The largest shareholder (his wife) was opposed to the disclosure. He was authorized to produce the last 2 years of financial statements.

vi) He did not have his credit card statements for the past three years. The most recent statements would be produced. He did not have authorization from his wife to disclose her banking information.

vii) He had no information regarding his bankruptcy. His bankruptcy was processed in the Ottawa court, and he did not remember the name of his trustee. He recalled that he went bankrupt in 1995 or 1996.

viii) His wife held an interest in Monster Mechanical Ltd. It was included in the shareholder’s register.

ix) He had a mortgage statement dated July 7, 2015, which would be provided.

x) He did not have property tax bills. They were sent to his mortgagee. Details of the property tax deductions were shown on his mortgage statement.

xi) He had no life insurance or pension.

xii) He had no copies of his applications for credit. He has no recollection of applying for credit in the past 3 years.

xiii) He did not possess his wife’s bank statements and credit statements.

xiv) He did not have documentary evidence of where he lived for the past 25 years.

[34] The contempt motion was heard on December 8, 2015. On that date, I found Mr. Bissonnette in contempt of my order dated June 8, 2015, for intentionally not having provided all the information required in his affidavit. In Mr. Bissonnette’s affidavit sworn July 13, 2015, he did not provide the following information required by my Order dated June 8, 2015:

i) Mr. Bissonnette stated that he filed his tax returns for years prior to 2012, and that “they were either destroyed or disposed of”, as were his Notices of Assessment for years prior to 2011. He did not produce any evidence that he made a request to the Canada Revenue Agency for those documents or produce the response received.

ii) Mr. Bissonnette did not produce proof of whether he had an interest in Monster Mchanical Ltd. or produce its financial statements. He stated that he could provide a copy of the company’s shareholder’s registry, but was not authorized by “the shareholders and directors” to release 7 years of financial statements of the corporation. He states that the largest shareholder was opposed to the disclosure, but did not identify that shareholder, or produce his written request for the documents and the responses received.

iii) Mr. Bissonnette stated that he did not have credit card statements for the past three years. He did not identify what statements he had during the period, and when and under what circumstances he ceased to have possession of them, or the person or institution he believe has possession of them now and the contact information for those persons or institutions. He did not produce written requests he made for the statements, or the responses he received.

iv) Mr. Bissonnette stated that he had no information regarding his bankruptcy. He stated that his bankruptcy was processed in the Ottawa court in 1995 or 1996, but said that he did not remember the name of his trustee. It was his obligation to obtain this information, which he was entitled to obtain and Ms. Hutcheon was not.

v) Mr. Bissonnette stated that he did not have credit card, line of credit, and mortgage applications for the past three years and has no recollection of making such applications. It was his obligation to make requests to the issuers of those credit facilities, state definitively whether the documents ever existed and, if so, in whose possession they are in. It was also Mr. Bissonnette’s obligation to provide copies of his requests for them and any responses he received.

vi) Mr. Bissonnette stated that his wife refused to provide her bank statements for the past 12 months. He was obliged to identify her and to provide her contact information, which would enable Ms. Hutcheon to make a motion, on notice to her, if so advised, for the production of those records. He also was obliged to make a written request for the records and to provide the responses received.

vii) Mr. Bissonnette stated that his property tax bills were in the possession of the mortgagee. He did not provide a copy of his written requests for them, or of the response received.

viii) Mr. Bissonnette stated that he did not have information as to where he has resided for the past 25 years, and did not provided any information as to his residence for any of those years. He was obliged to provide what information he had.

[35] I made the following order dated December 8, 2016:

1. Mr. Bissonnette shall pay to Ms. Hutcheon $100 per day until the Order is fully complied with, which Ms. Hutcheon shall confirm in the form of a written confirmation from her solicitor. In the event of a dispute as to whether there has been compliance, either party may return the motion to me by notice of return of motion to be heard by me between 9 and 10 a.m. on a date when I am presiding, to be arranged in advance with my judicial secretary.

2. The parties have leave to deliver additional evidence on the return of the motion and may, on notice to any non-parties affected, add a claim for production from non-parties.

d) The Order dated January 27, 2016

[36] On January 11, 2016, Justice Mossip, with the consent of the parties, ordered that Mr. Bissonnette’s motion be removed from the trial list. Justice Mossip further ordered that the issues would be heard as a long motion on March 7, 2016, for the full day. Factums were to be delivered by February 29, 2016.

[37] On January 27, 2016, a telephone conference was convened with me at the request of Ms. Hutcheon’s lawyer, Andra Clarke. Ms. Clarke asserted that Mr. Bissonnette had not complied fully with my order dated June 8, 2015. She set out in a letter dated January 25, 2016, the deficiencies she said still existed in Mr. Bissonette’s disclosure. I dealt with these in an endorsement of the same date, in which I ordered Mr. Bissonnette forthwith to deliver his Trial Record and Document Book, and for Ms. Hutcheon to deliver her material within 15 days after a decision was rendered on the trial of the issue, in the form of a Supplementary Trial Record and Supplementary Document Brief.

[38] I made a further order on January 27, 2016, for Mr. Bissonnette forthwith to produce an affidavit to Ms. Hutcheon with the information still outstanding from her Request for Information dated June 8, 2015, and that he sign Directions to First National Financial and RBC authorizing the release of records which Ms. Hutcheon had requested, and which Mr. Bissonnette stated he did not have, but which were in the possession of those institutions. I granted leave to Ms. Hutcheon to move, in the event of non-compliance, to dismiss Mr. Bissonette’s motion or other penalty, or for security for costs. I reserved the costs of the conference to the judge presiding at that motion, or at the long motion for determination of the issues, or to the trial judge.

e) Mr. Bissonnette’s motion for a refraining order

[39] Justice Bloom heard Mr. Bissonnette’s motion to cause the Family Responsibility to refrain from enforcing Justice Houston’s support order on March 7 and April 15, 2016. For reasons set out in an endorsement dated April 26, 2016, Justice Bloom declined to suspend enforcement of the support. On May 25, 2016, Justice Bloom released a costs endorsement. He stated that a final determination of the arrears issue would require a trial or a settlement of at least the issues of child need and hardship to Mr. Bissonnette. Because the financial circumstances of each of the parties were relevant to the costs issue, Justice Bloom reserved the issue of costs to the trial judge.

f) Motion to enforce orders dated June 8, 2015, and Jan. 27, 2016

[40] On August 5, 2016, I held a further Case Conference at the request of Ms. Clarke. Ms. Hutcheon sought enforcement of the orders made by me on June 8, 2015 and January 27, 2016, which imposed a penalty of $100 per day for non-compliance until the orders were fully complied with. Ms. Hutcheon asserted that Mr. Bissonnette had still not fully complied with those Orders. Mr. Bissonnette argued that he had complied.

[41] Ms. S. Dawson, the lawyer for the Ministry, advised that the Ministry had no interest in the motion. Accordingly, the Ministry’s response and attendance were dispensed with. On consent, I made an Order dated August 5, 2016, setting out a timetable for the motion which Ms. Hutcheon wished to make, to be heard October 11, 2016. The motion was heard on October 11, 2016, and judgment was reserved. My reasons follow below.

ISSUES

[42] Ms. Hutcheon’s motion requires the court to determine whether Mr. Bissonnette breached this court’s disclosure orders dated June 8, 2015 and January 27, 2016, and, if so, what penalty should be imposed. Alternatively, the court must determine whether to require Mr. Bissonnette to pay an advance to Ms. Hutcheon for her disbursements.

PARTIES’ POSITIONS

[43] Ms. Hutcheon seeks an order requiring Mr. Bissonnette to pay her the sum of $24,900 (as of August 15, 2016), pursuant to my order dated December 8, 2015. As noted above, that Order required Mr. Bissonnette to pay Ms. Hutcheon $100 per day until my order dated June 8, 2015 was fully complied with. Alternatively, Ms. Hutcheon’s motion requests an order dismissing Mr. Bissonnette’s motion to vary support, pursuant to my order dated January 27, 2016, which gave Ms. Hutcheon leave to bring a motion to dismiss his motion if my order of that date was not complied with.

[44] Mr. Bissonnette argues that he was in “substantial compliance.” He cites the court’s order dated January 27, 2016, in which it ordered him to produce further documents in response to Ms. Hutcheon’s Request for Information; an order that did not strike his pleadings or dismiss his motion. He submits that he and his lawyer “made every effort to comply with every expectation of the court.”

ANALYSIS AND EVIDENCE

a) Is Mr. Bissonnette still in contempt of the court’s orders dated June 8, 2015, January 27, 2016?

The legislative framework

[45] Rule 14(23) of the Family Law Rules governs compliance with orders made at motions and explicitly empowers the court to strike a party’s pleadings:

14.(23) A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out … any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs.[^1] [Emphasis added.]

[46] Rule 19(10) governs compliance with orders requiring disclosure. It similarly empowers the court to strike a party’s pleadings:

19(10) If a party does not follow this rule or obey an order made under this rule, the court may, on motion, do one or more of the following:

1. Order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

2. Order that a document favourable to the party’s case may not be used except with the court’s permission.

3. Order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.

4. Dismiss the party’s case or strike out the party’s answer.

5. Order the party to pay the other party’s costs for the steps taken under this rule, and decide the amount of the costs.

6. Make a contempt order against the party.

7. Make any other order that is appropriate. [Emphasis added.]

[47] Rule 31(5) sets out the powers a court may exercise when it finds a person in contempt, including imposing penalties, requiring compliance, or forbidding a continuation of the contempt:

31(5) If the court finds a person in contempt of the court, it may order that the person,

a) be imprisoned for any period and on any conditions that are just;

b) pay a fine in any amount that is appropriate;

c) pay an amount to a party as a penalty;

d) do anything else that the court decides is appropriate;

e) not do what the court forbids;

f) pay costs in an amount decided by the court; and

g) obey any other order.[^2]

[48] Rule 2 provides guidance as to how the Family Law Rules as a whole should be interpreted. It provides, in part:

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) 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.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost. [Emphasis added.]

[49] Mr. Bissonnette’s incomplete and delayed disclosure has caused Ms. Hutcheon to incur substantial and unnecessary costs. A number of her disclosure requests were still not complied with as of August 15, 2016. I make the following findings, in this regard:

i) Mr. Bissonnette stated in his July 13, 2015 affidavit that he filed his tax returns for years prior to 2012, and that “they were either destroyed or disposed of”, as were his Notices of Assessment for years prior to 2011. On December 8, 2015, Mr. Bissonnette provided a signed direction to the Canada Revenue Agency for the release of his income tax returns for 2008, 2009, and 2010 tax years and his Notices of assessment for those years, and for 2014. After a further letter from Mr. Hutcheon’s lawyer to the Tax Centre, she eventually received the documents on January 28, 2016.

ii) Mr. Bissonnette did not produce proof of whether he had an interest in Monster Mechanical Ltd. or produce its financial statements. On December 8, 2015, Mr. Bissonnette provided a signed direction. Ms. Hutcheon’s lawyer sent a request to the company on December 15, 2015, and received a reply from Mr. Bissonnette’s lawyer indicating that the minute book was in the possession of a lawyer, Steven Latinovich, and not in the possession of the company. On January 22, 2016, Ms. Hutcheon’s lawyer sent a request to Mr. Latinovich requesting the shareholder register and certificates and eventually, she eventually received them.

iii) Mr. Bissonnette initially stated that he did not have credit card statements for the past three years. Later, on December 8, 2015 and February 16, 2016, he provided directions which were not complete, as they did not include addresses or contact information where the directions could be sent. Ms. Hutcheon’s lawyer was required to spend a large amount of time researching and determining, by Googling and telephone calls to the institutions, the appropriate addresses and fax numbers for the 15 institutions. On December 15, 2015, she wrote to the institutions enclosing Mr. Bissonnette’s directions. She followed up with further correspondence on January 22, 25, and February 22, 2016. As of August 15, 2016, she still had not received the following statements which she had requested:

1. CIBC Line of Credit # **01-4337

2. TD Canada Trust Aeroplan VISA # **7345

3. Capital One Master Card # **5569

4. Walmart Financial Master Card # *4838

5. RBC royal Bank VISA # **8491

6. RBC Line of Credit # ***180-001

iv) Ms. Hutcheon requested from Mr. Bissonnette copies of document pertaining to his bankruptcy, including his tax return and notice of assessment for the year in which he filed for bankruptcy, and proof of discharge. In the letter that accompanied his affidavit sworn July 13, 2015, Mr. Bissonnette’s lawyer stated that his client had no information regarding his bankruptcy. He stated that his bankruptcy was processed in the Ottawa court in 1995 or 1996, but that Mr. Bissonnette did not remember the name of his trustee. I noted in my endorsement dated January 27, 2016, that it was Mr. Bissonnette’s obligation to obtain this information, which he was entitled to obtain and Ms. Hutcheon was not. I ordered Mr. Bissonnette, if requested by Ms. Hutcheon or her counsel, to provide an affidavit confirming the statement he had made, and that if Ms. Hutcheon’s lawyer required a direction to any central bankruptcy registry or government agency authorizing the release of the bankruptcy records to her, Mr. Bissonnette was to sign and return the direction to her.

v) Paragraph 12 of Ms. Hutcheon’s Request for Information required Mr. Bissonnette to provide an updated sworn financial statement. This request remained outstanding, and the most recent financial statement that Ms. Hutcheon had from Mr. Bissonnette as of August 15, 2016, was dated July 13, 2015.

vi) Paragraph 13 of Ms. Hutcheon’s Request for Information required Mr. Bissonnette to produce a recent mortgage statement for all properties in which he held an interest, including a spousal interest. On February 16, 2016, he provided a direction to First National Financial. On February 23, 2016, Ms. Hutcheon’s lawyer wrote to First National Financial requesting the records in connection with the mortgage. On March 2, 2016, First National Financial replied indicating that there was a fee of $50.00 for the documents. On March 3, 2016, Ms. Hutcheon’s lawyer wrote to Mr. Bissonnette’s lawyer and on March 15, 2017, a year and nine months after Ms. Hutcheon delivered her Request for Information, a cheque was provided to First National, as was required by my order dated June 8, 2015.

vii) Paragraph 14 of Ms. Hutcheon’s Request required Mr. Bissonnette to provide his property tax bills for any properties in which he held an interest. Mr. Bissonnette’s lawyer provided these five months later, on December 9, 2015.

viii) Paragraph 19 of Ms. Hutcheon’s Request for Information required Mr. Bissonnette to provide proof of where he had resided for the past 25 years. In his affidavit sworn December 8, 2015, he identified the addresses where he had lived since 2003.

[50] When the court is delayed in its determination of how much support should be paid, the issue of retroactivity is complicated, and the delay may compromise the recipient spouse’s claim. When a payor delays paying support that the court has ordered and arrears accrue, a new issue arises as to whether requiring the payor to pay the arrears is appropriate. That determination entails consideration of whether enforcing the order would result in financial hardship to the payor and whether not doing so would result in financial hardship to the recipient or the child. These issues are reflected in Justice Bloom’s Order dated May 25, 2016.

[51] Delay in the payment of court-ordered support undermines the integrity and effectiveness of support orders. It brings the recipient’s entitlement, which Justice Houston determined, on consent of the parties, on January 9, 1990, into doubt once again if the payor seeks to rescind the arrears either on the ground of financial hardship, the child’s continued need, or, in the present case, on the ground of Ms. Hutcheon’s alleged breach of the access order.

[52] Ontario’s legislative framework for orders of child and spousal support depends on self-reporting and disclosure by spouses. Sub-rule 15 of the Family Law Rules imposes on a party moving for a variation of a final order, or a party receiving such a motion, the obligation to produce financial statements and other documents at the beginning of the motion. Rule 15 provides, in part:

15. In this rule [Motions to Change a Final Order or Agreement]

(9) The following rules apply to a party who is served with a motion to change a final order or agreement:

1. If the party does not agree to the change or if the party wants to ask the court to make an additional or a different change to the final order or agreement, the party shall serve and file a response to motion to change (Form 15B), with all required attachments, within the time set out in clause (1)(a) or (b), as the case may be.

(10) The documents referred to in paragraphs 1 and 2 of subrule (9) shall be served and filed or returned and provided,

(a) no later than 30 days after the party responding to the motion receives the motion to change and the supporting documents, if that party resides in Canada or the United States of America….[Emphasis added]

[53] Form 15A (for parties making a motion to change a final order) and 15B (for parties responding to such a motion) provide, in Part 2 – Information from Support Payor, the following:

26. I attach the following financial information about myself:

(a) a copy of every personal income tax return that I filed with Canada Revenue Agency for the 3 most recent taxation years;

(b) a copy of every notice of assessment or re-assessment from Canada Revenue Agency of those returns; and

(c) (applies only if you are an employee) proof of this year’s earnings from my employer as required by clause 21(1)(c) of the Child Support Guidelines. [Emphasis added]

[54] Rule 9 of the Family Law Rules requires a party serving documents to file them with the court. It provides:

9(12) A party serving documents shall,

(a) If the continuing record has not been separated,

(i) Serve and file any documents that are not already in the continuing record, and

(ii) Serve with the documents an updated cumulative table of contents listing the documents being filed; and

(b) If the continuing record has been separated,

(i) Serve and file any documents that are not already in the party’s separate record, and

(ii) serve with the documents an updated cumulative table of contents listing the documents being filed in the party’s separate record.

(13) A party shall not serve or file any document that is already in the record, despite any requirement in these rules that the document be served and filed. [Emphasis added]

[55] Rule 13(17) provides explicit authority to the court to order a party to serve and file a document. It provides:

13(17) If a party has not served or filed a document in accordance with the requirements of this rule or an Act or regulation, the court may on motion order the party to serve or file the document and, if the court makes that order, it shall also order the party to pay costs. [Emphasis added]

[56] This court, by its Orders dated June 8, 2015 and January 27, 2016, required Mr. Bissonnette to produce the documents set out in Ms. Hutcheon’s Request for Information. Only if 1) he provided such information and records as he had in his possession, 2) provided an affidavit setting out all of the information required in relation to records that were no longer in his possession, and 3) provided directions to non-parties to provide such records directly to Ms. Hutcheon’s lawyer would Mr. Bissonnette’s response be in sufficient compliance with this court’s orders.

[57] The purpose of an order for an affidavit of the kind provided for in my Order dated June 8, 2015, is to avoid unnecessary motions for compliance in the event documents requested are not provided, and to obtain evidence that is required explaining the non-production. A further purpose of such an affidavit is to ensure that such motions as may be necessary for production from non-parties can be made economically, on notice to the non-party, and without unnecessarily penalizing a spouse who was directed to produce the records but, through no fault of his own, has been unable to obtain them from non-parties.

[58] Mr. Bissonnette deliberately failed to take the steps required of him in responding to Ms. Hutcheon’s Request for Information. He thereby shifted the expense of obtaining the relevant documents to her. This is unacceptable. It created unnecessary expense for Ms. Hutcheon in her response to Mr. Bissonnette’s motion to change, and jeopardized her ability to respond to it effectively.

[59] Mr. Bissonnette, in his motion to change, seeks to have the court rescind child support dating back 27 years, to February 1990. Yet he failed to produce his income tax returns and notices of assessment, as he was ordered to do, even from 2008 to 2014. He did not provide even the directions necessary to authorize Canada Revenue Agency to produce his taxpayer information to Ms. Hutcheon until December 8, 2015, 6 months after this court’s Order of June 8, 2015, and five months after July 19, 2015, by which date the Requests for Information were to be complied with.

[60] As this court noted in Pinto v Ponciano, 2016 ONSC 6466, at paras. 61 to 90, the proper determination of issues of support depends on the parties’ compliance with their disclosure obligations, as the Family Law Act and Federal Child Support Guidelines requires the court to base its determinations of spouses’ income on taxpayer information. However. the Income Tax Act does not permit the court to order the production of such information directly from the Canada Revenue Agency.[^3] In these circumstances, the court must be vigilant not to permit the power which the confidentiality of taxpayer information gives to the payor spouse to withhold information to result in unfairness to the recipient spouse.

[61] As noted above, Mr. Bissonnette argues that he was in “substantial compliance with the court’s order dated June 8, 2015. He cites the court’s order dated January 27, 2016, which ordered him to produce further documents in response to Ms. Hutcheon’s Request for Information, but that order did not strike his pleadings or dismiss his motion. He submits that he and his lawyer “made every effort to comply with every expectation of the court.” I disagree.

[62] As noted above, Mr. Bissonnette responded inadequately and late to Ms. Hutcheon’s Request for Information, and to the court’s disclosure orders dated June 8, 2015 and January 27, 2016. It was for this reason that the court found it necessary to take the following enforcement measures:

a) On December 8, 2015, it found Mr. Bissonnette in contempt of its order dated June 8, 2015 for intentionally not complying with its order dated June 8, 2015, and ordered him to pay $100 per day until the order was fully complied with;

b) On January 27, 2016, it ordered him to produce documents that Ms. Hutcheon had requested, and that he still had not produced, six months beyond the July 19, 2015 deadline that the court had imposed.

a) On August 5, 2016, it granted Ms. Hutcheon leave to make a motion to enforce the court’s earlier orders.

b) What penalty should be imposed?

i) Striking a Litigant’s Pleadings

[63] In Gordon v. Starr (2007), Quinn J. emphasizes that subrule 14(23) and the remedies it provides for where a party fails to obey an order should not be taken lightly. The onus is on the non-compliant party to show, on a balance of probability, why the rule should not apply.[^4] Quinn J. notes that it would take an extraordinary event to trigger the “unless” provision of subrule 14(23).

[64] In Ferguson v. Charlton (2008), Spence J. in the Ontario Court of Justice sets out the approach to be taken by the courts in dealing with a litigant’s non-compliance with court orders under subrule 14(23).

(a) The court must ask where there is a triggering event, such as non-compliance with a court order made on a motion.

(b) If the triggering event has occurred, the court should ask whether it is appropriate to exercise its discretion in favour of the non-complying litigant by ordering that subrule 14(23) does not apply or by not sanctioning the litigant under sub-rule 1(8). This discretion will only be exercised in exceptional circumstances. The court’s decision as to whether or not to exercise its discretion in favour of the non-complying party ought to take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party.

(c) If the court determines that it will not exercise its discretion in favour of the non-complying party, it will then exercise its very broad discretion as to the appropriate remedy pursuant to either sub-rule 1(8) or sub-rule 14(23).[^5]

[65] This court considered and implicitly adopted the three-part test from Ferguson in Morin v. Cunningham, (2009),[^6] and Ragno v. Ragno, (2010).[^7]

[66] In Purcaru v. Purcaru (2010), the Court of Appeal upheld the order of a trial judge who struck the husband’s pleadings and his financial statement and proceeded to trial the financial issues based solely on the evidence of the wife and her expert.[^8]

[67] Lang J.A. stated:

Nonetheless, the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that is entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue. In Sleiman v. Sleiman (2002), 2002 44930 (ON CA), 28 R.F.L. (5th) 447 at p. 448, a case involving a refusal to provide financial disclosure, this court upheld the motion judge’s determination that the appellant had demonstrated a “blatant disregard for the process and the orders of the court” as well as her decision precluding the appellant from contesting the wife’s financial claims. In Vacca v. Banks (2005), 6 C.P.C. (6th) 22, the plaintiff had repeatedly failed to comply with orders related to discovery and the progress of litigation. Ferrier J. for the Divisional Court, observed at p. 27 that the master’s remedy of the dismissal of the action may be an appropriate sanction to recognize the court’s “responsibility for the effective administration of justice.” [Emphasis added.]

1. The Onus

[68] As noted in Ferguson, once the court has found that Mr. Bissonnette breached the earlier orders of this court, the onus is on him to show why the court should exercise its discretion to find that rule 14(23) does not apply and that his pleadings should not be struck.[^9]

[69] Ms. Hutcheon has taken many steps to address Mr. Bissonnette’s non-compliance and non-disclosure. Mr. Bissonnette had over a year, which included court appearances both in person and by telephone, on December 28, 2015, January 27, and August 15, 2016, to comply with the disclosure requests and his outstanding support obligations.

[70] Mr. Bissonnette’s failure to pay support, while not the subject of this motion, provides context to his failure to comply with the court’s orders for disclosure. This is not a case, such as Clewlow v. Clewlow, (2004), where the husband offered to have FRO take his wife’s support from his bank account and provided a void cheque to them for this purpose.[^10] Mr. Bissonnette simply waited for the FRO to garnish his wages. In the meantime, he paid virtually nothing to Ms. Hutcheon, directly or indirectly, and did nothing to facilitate the FRO’s collection of the support that he knew he was required to pay.

[71] This is also not a case, such as Marcoccia, where the Court of Appeal set aside an order striking a husband’s pleadings that had been based on the husband’s failure to disclose records pertaining to a business in which he held a 50 per cent interest before selling his interest in the business to his partner. In Marcoccia, the husband maintained that he believed that he had complied fully with the disclosure order and the court below had made no finding that the husband deliberately breached the disclosure order. Additionally, it was still possible that the wife would obtain the records she sought, and the Court of Appeal concluded that an order striking the husband’s pleadings was not necessary to prevent prejudice to her.

[72] The circumstances of the present case differ materially from those in Marcoccia. I have found that Mr. Bissonnette deliberately breached the Orders in the present case. Additionally, his breaches caused harm to Ms. Hutcheon and prejudiced her ability to secure a fair determination of the issues on their merits.

[73] There can be no doubt as to the relevance of the records that Mr. Bissonnette has failed to produce. The fact that they were not produced will make it more difficult for Ms. Hutcheon to establish his ability to pay support from the date of Justice Houston’s Order to the present. It will also make it more difficult for her to adjust the amount of that support and to establish his ability to pay support on an ongoing basis.

[74] The delay caused by Mr. Bissonnette’s failure to make financial disclosure prejudices Ms. Hutcheon’s ability to establish her right to retroactive support and to resist an argument by Mr. Bissonnette that his arrears of support should be rescinded or reduced. Whether or not the court strikes Mr. Bissonnette’s pleadings, the court must consider the factors that the Supreme Court set out in D.B.S. and the factors that the Court of Appeal set out in DiFrancesco to determine whether support previously ordered should be retroactively reduced and whether the arrears of support should be rescinded or reduced. These determinations will entail an inquiry, unnecessary but for the fact of the delay, into who was responsible for the delay, and whether an order for retroactive support or a refusal to reduce such support or rescind arrears, would cause financial hardship to Mr. Bissonnette.

ii) Imposing a financial penalty

[75] Judicial restraint is required in the face of disobedience of court orders.[^11] The Rules reflect a balance between enforcing adherence to court orders designed to achieve the least costly, most expedient, and just determination of the issues on their merits, and avoiding such strict compliance that the interests of justice are defeated.[^12]

[76] It is not appropriate, in the present circumstances, given the lengthy proceeding that has taken place, including the Order that Justice Bloom made for the trial of the issues and the partial disclosure that Mr. Bissonnette has made, that his pleadings be struck pursuant to rules 13(17), 14(23), and 19(10) of the Family Law Rules. However, it is reasonable and appropriate to require Mr. Bissonnette to pay the amount of $24,900 to Ms. Hutcheon, representing $100 per day from the date of my Order dated December 8, 2015, to the date of this motion. This penalty will offset the additional and unnecessary expense that Mr. Bissonnette’s non-compliance imposed on Ms. Hutcheon and her lawyer in having to take steps that were properly the responsibility and obligation of Mr. Bissonnette.

[77] If this penalty is not paid, Ms. Hutcheon should be permitted to return her motion to have Mr. Bissonnette’s pleadings struck. If Mr. Bissonnette avoids accountability for not complying with his disclosure obligations, on grounds of his impecuniosity, he should not be permitted to proceed with his motion. It would be unfair to require Ms. Hutcheon to face a contested motion by Mr. Bissonnette if he fails to pay the penalty for failing to comply with the rules which the court imposes on any litigant seeking to obtain a variation of its previous final order.

CONCLUSION AND ORDER

[78] Based on the foregoing, it is ordered that:

1. Mr. Bissonnette shall pay Ms. Hutcheon, by March 15, 2017, the amount of $24,900 as a penalty for his contempt, pursuant to my order dated December 8, 2015, to the date of the present motion. He shall pay that amount within 30 days.

2. If Mr. Bissonnette fails to comply with this order, Ms. Hutcheon shall have leave to return her motion to have his pleadings struck.

3. If the parties are unable to agree on the costs of this motion, they shall submit written argument, not to exceed 4 pages, and a Costs Outline, by February 28, 2017.

4. The amount payable pursuant to paragraph 1, above, shall be deemed to be support and shall be enforced by the Director of the Family Responsibility Office.

Price J.

Released: February 15, 2017

CITATION: Hutcheon v. Bissonnette, 2017 ONSC 1108

COURT FILE NO.: 24/15 Guelph

DATE: 2017-02-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JUNE MARGARET HUTCHEON

Applicant

• and –

LEO BISSONNETTE

Respondent

REASONS FOR ORDER

Price J.

Released: February 15, 2017

[^1]: Family Law Rules, O.Reg. 114/99, Rule 14(23). [^2]: Family Law Rules, O.Reg. 114/99, Rule 31(5). [^3]: Pinto v Ponciano, 2016 ONSC 6466, paras. 61 to 90 [^4]: Gordon v. Starr, (2007), 2007 35527 (ON SC), 42 R.F.L. (6th) 366 (Ont. S.C.) at para. 16, Quinn J. [^5]: Ferguson v. Charlton, (2008) ONCJ 1 [Ferguson]. [^6]: Morin v. Cunningham (2009), 2009 34992 (ON SC), 96 O.R. (3d) 783 (S.C.). [^7]: Ragno v. Ragno, 2010 ONSC 3028. [^8]: Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121, at paras. 47-49, Lang J.A. [^9]: Ferguson, at para. 59. [^10]: Clewlow v. Clewlow, 2004 7355 (Ont. S.C.) at para. 31, Marshman J. [^11]: Prescott-Russell Services for Children and Adults v. G. (N.), (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.) [^12]: Cuff v. Gales, [2014] ONSC 4756, at para. 28, citing Broniek-Harren v. Osborne, 2008 ONSC 19782.