Court File and Parties
Court File No.: CF-15-718 Date: 2017/03/14 Superior Court of Justice - Ontario
Re: Natalie Christine Bédard, Applicant And Adrian Edwin Crawford, Respondent
Before: Madam Justice Engelking
Counsel: Stéphane A. MonPremier, Counsel for the Applicant Tanya Davies, Counsel for the Respondent
Heard: March 2, 2017
Endorsement
[1]
Overview
The Applicant brings this motion for an order striking the pleadings of the Respondent for failure to comply with the disclosure order of Justice Charbonneau dated September 15, 2016. She also asks for an order for costs.
2The Respondent brings a cross-motion requesting that the Applicant’s motion be dismissed and requesting an order of temporary access to his children, Nate Zekiah C. Bédard and Aiden David C. Bédard, both born on February 9, 2010.
[3]
Background
The parties were in a relationship from in or about 2009 to September of 2013. They never married or resided together. Their twin children were born of the relationship, Nate and Aiden, on February 9, 2010.
4The Applicant commenced these proceedings in May of 2015 seeking custody of the children and child support. The parties attended a case conference in July of 2016, and a motion on September 15, 2016. Charbonneau, J. ordered the Respondent to pay the Applicant child support starting September 1, 2016, in the sum of $438 per month based on an imputed income of $30,000. He also ordered the Respondent to provide the Applicant with certain disclosure by November 7, 2016, found that the issue of the Respondent’s access to the children was one for trial, and ordered him to pay the Applicant $1,000 in costs for the motion.
[5]
Motion to Strike Pleadings
The Applicant submits that the Respondent has not complied with the order of Charbonneau J. in relation to the disclosure he was to provide. She also argues that the Respondent has intentionally misled her and the Court in relation to the income, or lack thereof, that he receives. The Applicant seeks an order striking the Respondent’s pleadings as a consequence.
6The Respondent’s evidence is that he has complied with the order of Charbonneau, J. to the degree that he has been able, and that he has not mislead the Court or the Applicant in relation to his income. The Respondent contends that he is medically unable to work due to an accident in which he was injured in 2012, and it is for this reason that he has no income. He relies on a Multidisciplinary Chronic Pain Assessment report from his pain management specialists, Dr. Edward Shane and Dr. Jack Lefkowitz, dated August 24, 2016 in this regard.
7The Applicant disputes this assertion and points to the fact that the Respondent’s bank statements show a total of $65,476.83 in deposits between October of 2015 and September of 2016.
8The Respondent explains that he has been unemployed since November of 2015, and that the deposits are money he has borrowed from family and friends. He states that any record of money coming in to his accounts since he has been unemployed is borrowed money, and any record of money going out is to pay back others from whom he has borrowed. The Respondent indicates that he has paid the $438 per month that was ordered by Charbonneau, J., and he continues to do so by running up his credit card.
9The Applicant alleges that the Respondent has not complied with Charbonneau, J.’s order for disclosure. The evidence is that the Respondent provided partial disclosure on November 2, 2016, by way of email, of his BMO MasterCard (ending in 2835) and Tangerine account (ending in 7297) statements. Further, perhaps in response to this motion, on December 5, 2016, the Respondent’s counsel provided another batch of disclosure to the Applicant’s counsel which included statements/documentation from the “DLAC” account, the Scotialine (ending in 6107), his “ETF deposit from Canada” statement, statements from his Tangerine TFSA account (ending in 106), statements from his PayPal account, and statements from his TD Canada Trust account (ending in 3873). In addition, in his response to the motion, the Respondent provided documentation regarding his 1% interest in the home in which he resides. He also filed an updated Financial Statement in which he included the aforementioned bank accounts. The Respondent also paid the Applicant the outstanding $1,000 in costs which were ordered by Charbonneau, J. prior to this motion being heard. These facts distinguish this case from those of Levely v. Levely, 2013 ONSC 1026, and Manchanda v. Thethi, 2016 ONSC 3776, upon which the Applicant seeks to rely.
10The Respondent submits that he has provided disclosure to the best of his ability. The Applicant has not identified with any specificity what disclosure remains outstanding. I, therefore, accept that the appropriate disclosure has been made as required by Charbonneau, J.
11Having pleadings struck is an extreme remedy which should be “limited to serious cases of deliberate, persistent non-compliance, disregard for the court process and failure to either comply or adequately explain non-compliance”, as per Levely, supra, at paragraph 14. The facts of this case come nowhere near that test. In fact, I am having difficulty understanding the necessity of persisting with this motion once all of the above-noted disclosure was received by the Applicant. Had the Applicant resolved the motion on the basis of having received the disclosure, but sought costs for having had to file the motion in the first place, I may have entertained same. Arguing a motion for an order striking pleadings, on the other hand, after substantial disclosure has been received, serves only to deplete the parties’ resources and take up the court’s increasingly precious time, and I cannot condone it. I should note, moreover, that where the issues of custody of and access to children are also at stake, a party’s right to participate in a hearing regarding them cannot be lightly removed.
12While there may remain questions outstanding with respect to whether the Respondent has made some income he has not disclosed, and here I refer specifically to the entries of “Payment Received: xrstudios.com” revealed in the disclosed PayPal statements (which appear to be about $6,000 US in 2016 and less in earlier years), and possibly an accounting of the $65,476.83 the Applicant states has been deposited into the Respondent’s accounts over the past year, they are not ones I can conclusively determine on motion. I am of the view that these issues require questioning, and are more appropriately to be dealt with at trial, where the trier of fact will have the benefit of hearing from the parties, who can be cross-examined on their evidence, documentary and otherwise.
13The Applicant’s motion is dismissed.
[14]
Cross-Motion for Access
With respect to the Respondent’s cross-motion, I concur that Charbonneau, J. dealt with the matter squarely when he indicated at paragraph 4 of his Order of September 15, 2016 that: “The issue of the Respondent father’s contact with the children shall be determined at trial”. I am not prepared to go behind that order on a temporary basis. The Respondent’s cross-motion requesting an order of temporary access to the children is also dismissed.
[15]
Costs
While I suspect that the Respondent’s cross-motion would likely not have been brought absent the Applicant’s motion to strike his pleadings, given that neither party was successful on her or his own motion, I make no order at to costs.
Madam Justice Tracy Engelking Date: March 14, 2017