Court File and Parties

COURT FILE NO.: FS-09-65100-0001 DATE: 2017-03-15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

WILCASON MATHAIS BULLOCK Courtney Kazembe, for the Applicant Applicant

• and -

MICHELLE DIANE BULLOCK Michelle M. Abel, for the Respondent Respondent

HEARD: January 26, 2016, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] Two years after Lemon J. made a 2012 order requiring Wilcason Bullock to transfer $73,111 to his spouse, Michelle Bullock, for retroactive child support for their two children and, on an ongoing basis, $1,702 per month for the support of the children, and a further $694 as his contribution to the payment of the children’s special and extraordinary expenses, based on the income of $125,000 that Lemon J. imputed to him, Mr. Bullock moved for a variation of that order. Mr. Bullock’s grounds for the motion to change is that he was earning less than $125,000, and that his children were no longer “children of the marriage” within the meaning of the Divorce Act and therefore no longer entitled to child support.

[2] After responding to Mr. Bullock’s motion for the past two years, Ms. Bullock now moves to dismiss the motion on the ground that Mr. Bullock has breached multiple orders made during the proceeding. Mr. Bullock submits that he has substantially complied with the orders and, to the extent that he has not complied, he requests a further opportunity to do so. The court must determine whether Mr. Bullock is in breach of the orders and whether his motion should be dismissed on that ground.

BACKGROUND FACTS

The marriage and separation

[3] WiIcason Mathais Bullock (“Mr. Bullock”) is 51 years of age (born March 4, 1966). Michelle Diane Bullock (“Ms. Bullock”) is 49 (born August 5, 1967).

[4] Mr. and Ms. Bullock were married on May 31, 1991. They separated, after 17 years of marriage, on December 21, 2008, when Mr. Bullock left the matrimonial home.

[5] There are two children of the marriage, namely:

1. Brandon Wilcason Bullock, who is now 24 years old (born December 6, 1992); and
2. Nicholas Danny Bullock, who is now 21 (born June 16, 1995).

[6] The children have resided with Ms. Bullock since the parties separated.

[7] Nicholas is severely autistic. He is enrolled in an Individual Education program in the Peel District School Board. He is in the lowest 1 percentile of cognitive functioning and performs at a primary grade school level.

[8] Brandon is enrolled in a single course at York University, where he carries a reduced course load as the staff has found that he is disabled by reason of depression and ADHD.

Mr. Bullock’s income

[9] Mr. Bullock is an auto body mechanic by trade. On December 31, 2008, ten days after the parties separated, he registered a business, “Cas Autobody”, “Cas”, being short for Wilcason and the name by which Mr. Bullock is known to his friends.

[10] The autobody business’ principal address is 266 Rutherford Road South, Unit 25, Brampton, Ontario, which is the address that appears on Mr. Bullock’s personal cheques. Mr. Bullock produced Cas Autobody’s lease for the premises at that address. The lease is dated December 31, 2008, and lists the tenant as “Wilcason Bullock (cba: Cas Auto)”. The lease discloses that on or before December 31, 2008, Mr. Bullock paid a cash deposit of $6,258.62 to the landlord.

[11] A Business Names Report dated May 6, 2009, obtained by Ms. Bullock, listed Mr. Bullock’s brother-in-law, Robert Ellman, as the owner of Cas Autobody. Mr. Bullock assigned the lease to Mr. Ellman, who lives in Whitby, works in pest control in Whitby, and has no experience as a mechanic.

[12] Mr. Bullock acknowledges that in 2012, Mr. Ellman withdrew from the business, and that Mr. Bullock’s common law partner, Ms. Ramwatie Terebeni, a nineteen year old part-time employee at a Tim Horton’s restaurant, incorporated a company, 2272791 Ontario Ltd. and continued the auto body business in the name of Cas Auto body Collision at the same location. The company profile lists Ms. Terebeni as the sole officer and director, and Mr. Bullock claims that she owns 100% of the shares of the business.

[13] Mr. Bullock claims that he worked as the “primary mechanic” and that Ms. Terebeni worked as the business’ general manager. Mr. Bullock reported earning an annual salary of $24,600 and cash bonuses that varied with the business’ revenue each month.

Mr. Bullock’s assets

[14] On June 29, 2009, Ms. Terebeni, who reported earnings of $24,000, bought a home located at 12 Ridgewood Crescent, Brampton for a purchase price of $315,250. A down payment of $60,000 was provided, and the balance of the purchase price was financed by a mortgage in the amount of $252,200 which Mr. Bullock guaranteed. Mr. Bullock states that he provided no contribution toward the purchase of the home, but has not provided an explanation as to how his girlfriend could have afforded the purchase. The parties’ son, Brandon, informed his mother that Mr. Bullock told him that he brought the house himself.

[15] On July 28, 2009, Ms. Terebeni leased a 2008 Lexus GS5 four-door sedan. Mr. Bullock has stated that he leased this vehicle for her as a gift.

History of the litigation

[16] Ms. Bullock began the present proceeding in 2009. On November 23, 2009, her lawyer delivered a Request for Information to Mr. Bullock. On February 23, 2010, Van Melle J. made an order that Mr. Bullock deliver his response to the Request for Information by March 17, 2010. On March 17, 2010, Ms. Bullock’s lawyer received an affidavit sworn by Mr. Bullock, with very limited information, in which he disputed the relevance of the many of the documents requested and much of the information requested, and stated that for this reason, he was not required to produce the documents or provide the information.

[17] On June 17, 2010, I made an order striking Mr. Bullock’s application and granting Ms. Bullock leave to proceed with her Answer to an uncontested hearing. I prohibited Mr. Bullock from taking further steps unless he first complied fully with an earlier order of Van Melle J. and paid the costs of the motion before me, which I fixed at $1,469.47.

[18] Mr. Bullock appealed from my order to the Divisional Court, but later withdrew the appeal as he had brought it in the wrong forum. He then appealed from the order to the Court of Appeal. He failed to perfect that appeal, with the result that the Registrar of the Court dismissed the appeal. Mr. Bullock then moved to set aside the dismissal, which motion was dismissed by Doherty J.A. on February 11, 2011. Mr. Bullock then moved before this Court to reinstate his pleadings, which motion was dismissed by Fragomeni J. on April 26, 2011.

[19] Ms. Bullock proceeded to an uncontested trial, which Lemon J. heard on April 4, 2012. Justice Lemon made a final order on that date granting sole custody of the children to Ms. Bullock, with access to Mr. Bullock at Ms. Bullock’s sole discretion. He further ordered Mr. Bullock to pay the following amounts:

1. $1,702 per month, beginning January 1, 2009, as child support for the children, based on an imputed income of $125,000.
2. $694 per month, beginning January 1, 2009, as his contribution to the children’s special and extraordinary expenses, which then consisted of babysitting.
3. $73,111 as retroactive support as of January 12, 2012, to be enforced by the Family Responsibility Office.
4. $45,057.77 as an equalization payment to Ms. Bullock, less $1,100.57 equalization that Ms. Bullock owed to Mr. Bullock.
5. $4,500 for Ms. Bullock’s costs of the motion decided by Fragomeni J. on April 26, 2011, with interest of $112.50 to February 26, 2012.

[20] Justice Lemon ordered that Mr. Bullock pay the total of $121,689.70 to Ms. Bullock as follows:

1. Mr. Bullock’s interest in the TD Waterhouse Investment, Account #669J74, being $49,420.52, was to be unfrozen and transferred by TD Waterhouse directly to Ms. Bullock.
2. The balance of $72,260.18 was to be paid by the financial institutions directly to Ms. Bullock from any other accounts held by Mr. Bullock at TD Canada Trust and TD Waterhouse, including but not limited to Mr. Bullock’s account #1180-6406896 with TD Canada Trust.
3. Any balance owing was to be paid by Mr. Bullock to Ms. Bullock within 30 days of the date of the order and enforced by the Family Responsibility Office as support arrears.

[21] Justice Lemon further ordered that:

1. Mr. Bullock’s interest in TD Canada Trust Investment account #0262-8663897-01 was to be unfrozen and was to vest in Ms. Bullock, who was to use the funds for the education of the children.
2. Mr. Bullock was to name Ms. Bullock as irrevocable beneficiary, in trust for the children, of his universal life insurance policy with Sun Life Financial, policy no. F1716929, which had a face value of $200,000 (the “life insurance”), and was to pay all premiums on the policy for so long as Mr. Bullock had an obligation to pay child support to Ms. Bullock. Mr. Bullock was to provide Ms. Bullock with proof of the change in beneficiary designation within 10 days of being served with Lemon J.’s order. By January 1 of each year, Mr. Bullock was to provide Ms. Bullock with proof that the insurance policy remained in effect and that the premiums were being paid.

[22] Justice Lemon ordered, in paragraph 13, that Mr. Bullock forthwith pay to Ms. Bullock her costs, fixed at $20,000, 50% of which was to be enforced by the Family Responsibility Office. In paragraph 15, he ordered Mr. Bullock to pay interest on amounts owing under the Order at the rate of 3%.

[23] Mr. Bullock made a motion on April 2, 2014, to vary Justice Lemon’s order dated April 4, 2012. He requested that his child support be reduced to $650 per month based on his annual income, which he stated was $44,172.

[24] As of June 22, 2015, Mr. Bullock owed child support in the amount of $147,463.13, as appears from the Statement of Arrears issued by the Director of the Family Responsibility Office. By November 19, 2015, the amount owing had increased to $154,430.57.

ISSUES

[25] The court must determine whether Mr. Bullock is in breach of the orders of this Court, and whether his motion should be dismissed on that ground.

PARTIES’ POSITIONS

[26] Ms. Bullock states that Mr. Bullock has breached four orders of this Court, including the order of Justice Lemon, which he seeks to vary, and that the Court should dismiss his motion or stay it until he complies.

[27] Mr. Bullock states that he has substantially complied with all of the orders in question and that, to the extent he has not complied, he has an explanation and should be given a further opportunity to comply and be permitted to continue with his motion.

ANALYSIS AND EVIDENCE

a) Ms. Terebeni’s request for an adjournment

[28] Mr. Bullock’s current lawyer, Courtney Kazembe, acted as agent for Ms. Terebeni, to request an adjournment of the motion. He acknowledged that Ms. Terebini received the motion material at the residence she shares with Mr. Bullock but argued that she had not been properly served and therefore disregarded it.

[29] Ms. Bullock tendered an affidavit of service by Eileen Wallace, sworn November 30, 2015, stating that the motion material was served on Ms. Terebeni on November 29, 2015, at 6:45 p.m., by being delivered to Bula, an adult member of Ms. Terebeni’s household, and by sending a copy of the material to Ms. Terebeni at the same residence by mail the following day, in accordance with Rule 6(2) of the Family Law Rules.

[30] After hearing counsel’s arguments in relation to the adjournment, I concluded that the motion was served on Ms. Terebeni in a timely manner and that she had been given a sufficient opportunity to consult counsel and respond to it, at least by submitting evidence in support of her request for adjournment. No such evidence was tendered, and no adequate reason was given as to why she was not prepared to proceed with the hearing on the appointed date.

[31] I dismissed Ms. Terebeni’s request for adjournment. I ordered Ms. Terebeni, by February 29, 2016, to produce to Ms. Bullock the documents required by paragraph 8 of Van Melle J.’s Order dated February 17, 2015, a copy of which was given to Ms. Terebeni in court. I additionally ordered that Ms. Terebeni attend on March 9, 2016 at 10 a.m., at the offices of Micro-Tech, 201 City Centre Drive, Mississauga, to be questioned on the issues raised in the proceeding and on the documents produced.

[32] I further ordered that if Mr. Bullock prevailed in his argument on January 26, 2016, Ms. Terebeni had leave to apply, by February 5, 2016, to vary the order requiring her to attend questioning. As it developed, Mr. Bullock did not prevail on January 26, and Ms. Terebeni did not apply to vary the order requiring her to attend for questioning.

b) Did Mr. Bullock breach the orders of this court?

Legislative framework

[33] Rule 1(8) of the Family Law Rules governs compliance with orders made in a case, or in a related case. Subrules 1(8)(b) and (c) explicitly empower the court to dismiss a party’s claim or strike a party’s pleadings for non-compliance:

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.

(8.1) If a person fails to follow these rules the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).

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

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.]

[35] 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.]

Jurisprudence

(i) The court’s exercise of discretion to dismiss a party’s claim or strike pleadings

[36] In Marcoccia v. Marcoccia (2008), the Ontario Court of Appeal cautioned that a “remedy striking a pleading is a serious one and should only be used in unusual cases”.

[37] A court may nevertheless dismiss proceedings for non-compliance with court orders, including non-payment of support and failure to comply with disclosure orders. See Brophy v. Brophy, at para. 11; Vetro v. Vetro, 2013 ONCA 303, at para. 4.

[38] Rule 1(8) was amended in 2014. This amendment removed the requirement that a party’s failure to follow the Rules or obey a Court order have been ‘wilful’ in order for the Court to be able to dismiss the party’s claim. “The establishment of the failure to obey an order in a case will be sufficient to dismiss a claim. Rule 1(8) still provides that the court may deal with a failure to obey an order in a case by making any order that it considers necessary for a just determination of the matter, including striking out any Motion to Change.” See Myers v Myers, 2014 ONSC 1804.

[39] The jurisprudence under the former subrules 1(8) or 14(23) (Failure to Obey Order Made on Motion), is still applicable and sets out the relevant principles for the court to consider. See Myers, 2014 ONSC 1804, at para 29. In Ferguson v. Charlton (2008), 2008 ONCJ 1, Spence J. of the Ontario Court of Justice set out the approach to be taken by the courts when deciding whether to dismiss a motion or application for non-compliance.

(a) The court must ask where there is a triggering event, such as non-compliance with a court order in the case or a related case. (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 by not sanctioning the litigant. 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 broad discretion as to the appropriate remedy under subrule 1(8).

[40] This court recently considered and adopted the three-part test from Ferguson in Dumont v. Lucescu (2015), 2015 ONSC 494, at para 41, and Chiaramonte v. Chiaramonte (2015), 2015 ONSC 179, at para 48.

[41] In Purcaru v. Purcaru (2010), 2010 ONCA 92, the Court of Appeal upheld the order of a trial judge who struck the husband’s pleadings and his financial statement and proceeded to a trial of the financial issues based solely on the evidence of the wife and her expert. 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), 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.]

(ii) The Onus

[42] As noted in Ferguson, at para. 59, once the court has found that Mr. Bullock 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 1(8) does not apply and that his pleadings should not be struck.

Applying the legal principles to the facts of this case

(i) Justice Lemon’s Order dated April 4, 2012 for payments of support

a. Payment of arrears

[43] The Order of Lemon J. dated April 4, 2012, provided that Mr. Bullock owed Ms. Bullock a total of $121,680.70 as of December 31, 2011. This amount included $73,111 for retroactive child support as of December 31, 2011. The balance of the amount to be paid represented equalization and the costs ordered by Fragomeni J. on April 26, 2011.

[44] Paragraph 10 of Lemon J.’s Order required Mr. Bullock to pay the $121,680.70 to Ms. Bullock as follows:

(a) The Applicant’s interest in the TD Waterhouse Investment, Account #669J74, being $49,420.52 shall be transferred to the Respondent directly by TD Waterhouse and this account shall be unfrozen. (b) The balance of $72,260.18 shall be paid by the financial institutions directly to the Applicant from any other accounts held by the Applicant at TD Canada Trust and TD Waterhouse, including but not limited to the Applicant’s bank account #1180-6406896 with TD Canada Trust. (c) The balance owing, if any, shall be paid by the Applicant to the Respondent within 30 days of the date herein and shall be enforced by the Family Responsibility Office as support arrears.

[45] It is not disputed that TD Waterhouse transferred the amount of $49,420.52 to Ms. Bullock as required by paragraph 10(a) of Lemon J.’s Order.

[46] Mr. Bullock asserts that a further $73,111 was transferred to Ms. Bullock as required by paragraph 10(b) of Lemon J.’s Order. This is disputed by Ms. Bullock. In support of his assertion, Mr. Bullock relies on Schedule “A” of the Statement of Arrears dated June 22, 2015, from the Director of the Family Responsibility Office, which Ms. Bullock attached to her affidavit sworn November 20, 2015.

[47] Schedule “A” begins recording amounts due from Mr. Bullock beginning November 1, 2009. Justice Lemon’s Order contains two contradictory provisions as to the date when retroactive child support was owing. In paragraph 7, he states that $73,111 was owing for support as of January 12, 2012. In paragraph 10(a), he states that as of December 31, 2011, Mr. Bullock owes Ms. Bullock $121,680.70, which includes retroactive child support in the amount of $73,111.

[48] Justice Lemon’s Order provides that, in addition to the retroactive child support of $73,111 which Mr. Bullock owes for child support as of either December 31, 2011, or January 12, 2012, he owes ongoing child support of $1,702 per month and contributions of $694 per month to the children’s special and extraordinary expenses from January 1, 2009, onward. Because Lemon J. fixed the support owing in the amount of $73,111 as of January 12, 2012, the first ongoing support amount became due on February 12, 2012.

[49] The Director of the Family Responsibility Office entered the amount owing by Mr. Bullock as $0.25 as of May 2, 2012, being the first non-holiday of the month after Lemon J. made his Order. The Director debits the first amounts owing for ongoing child support and s. 7 expenses on June 1, 2012, in the amount of $2,396 ($1,702 child support and $694 for special and extraordinary expenses, recorded collectively as “support accrual”). The Director debits a further amount of $7,612 on June 18, 2012, with reference to the Support Deduction Order dated January 12, 2012, being the later of the two dates when Justice Lemon fixed retroactive child support. The amount of $7,612 appears to reflect the $2,396 per month for ongoing child support and contribution to s. 7 expenses for three additional months. This was apparently intended to bring the total amount debited up to June 1, 2012, to the amount owing for four months, being February 12 to May 12, 2012, inclusive.

[50] The Director debited the amount of $72,124.75 to Mr. Bullock’s account on June 18, 2012, described as “SDO January 12, 2012 SET ARRS”. I interpret that entry to mean “Settlement of Arrears” owing as of December 31, 2011, as provided for in paragraph 10(a) of Lemon J’s Order. It is possible that this was an accounting entry to permit the crediting of an amount of $72,124.75 received on June 18, 2012, and posted to the account on July 12, 2012. However, the Schedule shows it as a debit and, in the absence of evidence to the contrary, and for the reasons that follow, I accept the accuracy of the Statement of Arrears.

[51] I infer from the entries in Schedule “A” that the Family Responsibility Office received $72,124.75 of the $72,260.18 that Lemon J. ordered to be paid from TD Canada Trust and TD Waterhouse Investment, pursuant to paragraph 10(b)(ii) of his Order dated April 4, 2012. The amount received was credited to the account on July 12, 2012, with the reference “73,111 paid to SR” which I interpret to mean that the $73,111 that Lemon J. found to be owing as retroactive support, either as of January 12, 2012, or December 31, 2011, was paid to Ms. Bullock, or was believed to have been paid to her, as the “Support Recipient”, on July 12, 2012, leaving the balance of $850.82 of the arrears still owing, to be paid from amounts garnished from time to time from Mr. Bullock.

[52] On May 4, 2013, the amount of $73,111.00 was debited to Mr. Bullock in Schedule “A” of the Statement of Arrears, with the notation “ADJ 04-May-13” and “ADJ SR ARR”. I interpret that entry to mean that an adjustment was made on May 4, 2013, for the arrears of support that were owing as of either January 12, 2012, pursuant to paragraph 7 of Lemon J.’s Order dated April 4, 2012, or December 31, 2011, pursuant to paragraph 10 of the Order.

[53] Mr. Bullock argues that the May 4, 2013, entry in Schedule “A” was erroneously made. He insists that the $73,111 was, in fact, transferred, as required by paragraph 10(b)(ii) of Lemon J.’s Order. Mr. Bullock’s counsel stated that the payment was made from a specific bank account, namely, TD account #6406896. Mr. Bullock filed an affidavit sworn June 23, 2015, in which he attached a detailed account history for that account. The account history discloses no payment of the $73,111. Additionally, it discloses that the balance in the account from January 2012 to the end of that year never exceeded $7,000, in 2013, it never exceeded $10,000, in 2014, it never exceeded $6,000, and after January 2014, it never exceeded $3,000.

[54] For these reasons, and those that follow, and in the absence of evidence to the contrary, I accept the accuracy of the Statement of Arrears.

[55] Schedule “A” discloses that Mr. Bullock owed arrears of $147,463.13 as of June 1, 2015, being the end of the period covered by the Statement of Arrears dated June 22, 2015. Ms. Bullock states that the amount owing increased to $154,430.57 as of November 20, 2015.

[56] Mr. Bullock asserts that the Statement of Arrears is incorrect in that:

(a) It does not take account of the $49,420.52 that Ms. Bullock acknowledges was transferred to her by TD Waterhouse Investment; (b) It debited $73,111 to the account on May 4, 2013, when that amount had, in fact, been transferred to Ms. Bullock.

[57] As for the $49,420.52 that TD Waterhouse Investment transferred to Ms. Bullock, FRO was entitled not to credit that amount to Mr. Bullock’s account for arrears of support. The transfer was made, for the most part, to satisfy amounts that Mr. Bullock owed to Ms. Bullock as a net equalization payment and for costs, which, together, approximated the amount of the transfer.

[58] Mr. Bullock owed Ms. Bullock a net equalization payment of $43,957.20, being the difference between the equalization payment of $45,057.77 that he owed her and the equalization payment of $1,100.57 that Ms. Bullock owed Mr. Bullock. Mr. Bullock additionally owed Ms. Bullock the outstanding costs of $4,500 pursuant to the Order of Fragomeni J. dated April 26, 2011, and interest of $112.50 owing on those costs as of February 26, 2012, as provided for in paragraph 10(a) of Lemon J.’s Order dated April 4, 2012. The total of those obligations amounted to $48,569.70, which is $850.82 less than the amount transferred.

[59] There is no evidence before me as to when the transfer of $49,420.52 was made, or whether interest of 3% had accrued on the net equalization amount or the costs owed pursuant to Fragomeni J.’s Order before it was paid. In the absence of such evidence, I am not prepared to conclude that the Family Responsibility Office erroneously failed to credit Mr. Bullock with all or a portion of the transfer of the $49,420.52.

[60] As for the $73,111 that Mr. Bullock was required to transfer to Ms. Bullock pursuant to paragraph 10(b)(ii) of Lemon J.’s Order, and that Mr. Bullock says he did transfer, that amount was debited to Mr. Bullock’s account with FRO on May 4, 2013, after the FRO had debited his account for $72,124.73 on June 18 and credited it with the same amount on July 12, 2012.

[61] The statutory scheme governing default hearings under the Family Responsibility and Support Arrears Enforcement Act (“the Act”) is set out in section 41 of the Act and in rule 30 of the Family Law Rules. The Director may initiate a default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. See Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825, at paragraph 17.

[62] At a default hearing, the amount of arrears owed and the payor's ability to pay are the central issues. Subsection 41 (9) of the Act puts the onus on the payor, as follows:

Presumptions at hearing

(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office. [Emphasis added]

[63] This is not a default hearing under the Act. It is a motion, brought pursuant to Rule 1(8) and 19(10) of the Family Law Rules, to dismiss Mr. Bullock’s motion to vary a final order, which he brought pursuant to section 15 of the Family Law Rules. The motion to dismiss is made on the ground that Mr. Bullock failed to comply with multiple previous orders, including the Order for child support that he wishes to vary, which is being enforced by the Family Responsibility Office.

[64] Rule 13 of the Family Law Rules requires a party who moves for a variation of a final order to produce a Statement of Arrears from the Family Responsibility Office. It provides:

13(4.2) Subject to subrule (1.3), the following rules respecting financial statements apply if a motion is made under rule 15 requesting a change to a final support order or a support agreement:

1. The party making the motion shall serve a file a financial statement (Form 13 or 13.1) with the motion to change (form 15).

(5.0.1) A party who is required under subrules (4) to (4.3) to serve and file a financial statement shall serve with the financial statement the following information, unless the court orders otherwise:

1. The documents referred to in sub-rule (3.1).
2. A current statement of arrears from the Family Responsibility Office.

[65] In a proceeding in which a payor spouse has moved for a variation of a final support order, and is therefore required to serve a Statement of Arrears, and particularly where, as in the present motion, Mr. Bullock’s compliance with an order for child support being enforced by the FRO is an issue, a Statement of Arrears prepared by the Director of the FRO is entitled to deference, even if it is not presumed to be correct, as it is in a default hearing under the Act.

[66] Mr. Bullock’s counsel stated at the hearing of Ms. Bullock’s motion that he would have to bring someone from the Family Responsibility Office to say why the $73,111 was debited to Mr. Bullock’s account on May 4, 2013. He submitted that the amount was paid, but did not tender any evidence, other than Schedule “A” of the Statement of Arrears which Ms. Bullock attached to her affidavit, to prove that the $73,111 was, in fact, paid. Mr. Bullock received Ms. Bullock’s affidavit, with Schedule “A” of the Statement of Arrears attached, on November 25, 2015. I draw an adverse inference from his failure to tender responding evidence that would show that the transfer was made and that the debit made to his account on May 4, 2013 was erroneously made.

[67] Mr. Bullock’s counsel argued that after the transfer of $49,420.52 to Ms. Bullock by TD Waterhouse Investment and the $73,111 which Mr. Bullock asserts was transferred pursuant to paragraph 10(b)(ii) of Lemon J.’s Order, Mr. Bullock paid an additional $63,000 to Ms. Bullock between April 4, 2012, when Lemon J. made his Order, and January 26, 2016, when Ms. Bullock’s motion to dismiss was heard.

[68] The Statement of Arrears discloses that only $35,032.87 was paid between April 1, 2012 and June 1, 2015 (June 1, 2015 being the final date recorded in the Statement), apart from the amounts required to be transferred to satisfy the net equalization payment, retroactive support as of January 12, 2012, and the costs awarded by Fragomeni J. In fact, the entire Schedule “A” of the Statement of Arrears, which begins November 1, 2009, shows, apart from the transfer of $72,124.73, payments of only $49,329.62. Mr. Bullock’s counsel did not tender any evidence supporting his assertion that Mr. Bullock paid $63,000 in addition to the transfer required by paragraph 10(b) of Lemon J.’s Order.

[69] 47 months elapsed from February 12, 2012, being the month following the period covered by retroactive support which Lemon J. dealt with in paragraph 10 of his Order, to January 26, 2016, when the present motion was heard. This translates to $112,612 in ongoing payments of $2,396 for child support and contributions to s. 7 expenses. Additionally, Mr. Bullock was required to pay $20,000 in costs awarded by Lemon J., half of which were to be enforced by the FRO pursuant to paragraph 13 of his Order. The $10,000 enforced by the FRO, which FRO debited to Mr. Bullock’s account on April 26, 2013, brought Mr. Bullock’s obligation for ongoing child support, s. 7 expenses, and costs, to $122,612.

[70] Even if Mr. Bullock paid $63,000 over and above the amounts transferred for the payment of net equalization, retroactive support, and Fragomeni J.’s costs, as his counsel asserts, this was $59,612 less than he was required to pay for ongoing child support, contributions to s. 7 expenses, and half of the costs awarded by Lemon J. If the $72,260.18 that was required to be transferred pursuant to paragraph 10(b)(ii) of the Order is added to Mr. Bullock’s shortfall, he owed a total of $131,872.18 in arrears as of January 26, 2016.

[71] As of June 18, 2015, Mr. Bullock held an RRSP in the amount of $116,546.96 which he could have redeemed and thereby paid a sizable portion of the arrears owing.

[72] Based on the foregoing analysis, I find that Mr. Bullock breached the Order of Lemon J. requiring payment of retroactive support, ongoing child support, contributions to s. 7 expenses, and costs.

b. Non-payment of interest

[73] Justice Lemon’s Order dated April 4, 2012, by paragraph 13, required Mr. Bullock to pay Ms. Bullock’s costs in the amount of $20,000. Paragraph 15 required him to pay interest of 3% per year on the amounts owing under the order. Mr. Bullock paid the $20,000 costs on June 11, 2015, following Van Melle J.’s Order dated February 17, 2015. Justice Van Melle’s Order required Mr. Bullock to pay the costs before taking any further steps and permitting Ms. Bullock to move, in the event of non-payment, for an order dismissing Mr. Bullock’s motion.

[74] The cheque for the costs was dated incorrectly, and a new cheque was provided on June 19, 2015, more than three years after Lemon J.’s Order. The interest that accrued on the costs amount from April 4, 2012 to the date of payment, amounted to $1,925.46. That interest amount was not paid.

[75] Mr. Bullock’s counsel, Mr. Kazembe, argued that Mr. Bullock’s failure to pay the interest was due to Mr. Kazembe’s inadvertence. He suggested that if Ms. Bullock’s counsel had simply telephoned him or written requesting payment of the interest, he would have advised Mr. Bullock to pay it and it would have been paid. I reject this argument. Mr. Kazembe is Mr. Bullock’s fourth counsel. He was represented by T. Viresh Fernando when Lemon J. made his order in April 2012.

[76] It is not disputed that Ms. Bullock’s counsel sent a letter to Mr. Kazembe by facsimile on November 12, 2015, shortly before the present motion was brought, stating, “Lastly, your client has not complied with the original Order. He has not paid interest on the cost award and he has provided no proof of life insurance. Please provide us with the above within seven days of the date of this letter. If we are not fully satisfied with the response we will be bringing a motion to dismiss Mr. Bullock’s motion to change….”

[77] Based on the foregoing, I find that Mr. Bullock breached the Order of Lemon J. dated April 4, 2012, which required Mr. Bullock to pay interest at 3% on the costs Lemon J. awarded to Ms. Bullock.

c. Proof of life insurance

[78] Justice Lemon’s Order dated April 4, 2012, in paragraph 12, stated:

(a) The Applicant shall name the Respondent as irrevocable beneficiary, in trust for the children, on his universal life insurance policy with Sun Life Financial, policy no. F1716929, which has a face value of $200,000.00 (the “insurance”) and shall pay all premiums on this policy for so long as there is an obligation by the Applicant to pay child support to the Respondent. (b) The Applicant shall provide the Respondent with proof of the change in beneficiary designation within ten (10) days of being served with this order. (c) By January 1st of each year, the Applicant shall provide the Respondent with proof that the insurance policy remains in effect and that the premiums are being paid.” [Emphasis added]

[79] Ms. Bullock states that she received no evidence of insurance coverage following Lemon J.’s Order. Nor has Mr. Bullock provided such evidence to the Court in response to Ms. Bullock’s motion to dismiss. As noted above, Ms. Bullock’s lawyer sent a letter dated November 12, 2015, providing a final demand for the proof of insurance within seven days, failing which she would move to dismiss Mr. Bullock’s motion to change.

[80] Based on the foregoing, I find that Mr. Bullock breached Lemon J.’s Order requiring him to provide proof of insurance coverage to Ms. Bullock.

c) Failure to provide financial disclosure

[81] On February 23, 2010, Van Melle J. ordered Mr. Bullock to provide the disclosure requested in Ms. Bullock’s Request for Information dated November 23, 2009, by March 17, 2010. The Request for Information requested, among other things, the following information and documents, which were never provided:

1. The details as to the source of the funds Mr. Bullock used to pay the deposits on Cas Autobody’s lease, amounting to $6,158.62 by December 31, 2008, and $1,726.93 at the time of signing.
2. The source of three deposits, amounting in total to $14,000, made on December 30 and 31, 2008, and January 2, 2009, to TD Canada Trust Value Plus Account #6406896.
3. The reasons why the following amounts were withdrawn from the TD Canada Trust Value Plus Account #6406896, and where the money was placed, and the documentation evidencing same: (a) Cheque 003 for $2,938 on January 7, 2009 (b) Cash withdrawal of $3,000 on January 14, 2009 (c) Cash withdrawal of $3,000 on January 27, 2009 (d) Cash withdrawal of $3,000 on June 1, 2009 (e) Cash withdrawal of $4,000 on June 9, 2009 (f) Transfer of $6,000 on August 7, 2009
4. The details of the ING Insurance policy for which a debit of $277.50 was made to the bank account on January 26, 2009, what was insured by the policy, and a copy of the bank transfer.

[82] In my Order dated June 17, 2010, I required Mr. Bullock to comply fully with Van Melle J.’s Order dated February 23, 2010.

[83] With regard to item 1 in the Request for Information, the information was not provided. With regard to item 2, none of Mr. Bullock’s asset/debt accounts show the source of the funds used by him to pay the costs awards of $1,200 and $20,000. With regard to item 3, Mr. Bullock was to provide the details of the transactions that are disclosed in the monthly statements for the accounts for which Mr. Bullock had signing authority. Mr. Bullock did not provide the details of the transactions in TD Canada Trust Value Plus Account #6406896, for which he provided the bank statements, and did not provide an affidavit stating whether or not he had signing authority for the account.

[84] Mr. Bullock’s counsel submitted that his client should be excused from providing any information and documents in the possession of Ms. Terebeni. Mr. Bullock, in his affidavit sworn June 23, 2015, states, with reference to such documents, “I have been separated from my former common law partner, by name Ramwantie Tereveni, since August 2014, as such it is difficult for me to get or secure any documents from her.” [Emphasis added]

1. Mr. Bullock’s counsel argues that the leave the court granted to Ms. Bullock’s counsel to question Ms. Terebeni should relieve Mr. Bullock of his obligation to obtain information and documents from her. I reject this position for the following reasons:
2. Ms. Terebeni continues to be the registered owner of the house in which the parties resided, purchased with a down payment of $60,000 when she was a part-time employee at Tim Horton’s. Mr. Bullock provided no explanation as to where she obtained the money for this purchase;
3. Ms. Terebeni leased a 2008 Lexus in her name after August 2014;
4. Ms. Terebeni continued, after August 2014, to be the sole officer and director of the company from which Mr. Bullock continued to draw income;
5. Ms. Terebeni and Mr. Bullock attended together at Ms. Bullock’s aunt’s funeral and other functions after August 2014;

[85] Based on the above facts, I find that Mr. Bullock has control of the information and documents that are in Ms. Terebeni’s possession and could obtain that information and those documents from her if he wished. His affidavit of June 23, 2015, neither complies fully with Van Melle J.’s Order nor adequately explains his failure to provide the information and documents required by the Order.

[86] In Van Melle J.’s Order of February 17, 2015, paragraph 5 of Schedule A required Mr. Bullock to provide the responses he received from financial institutions to the letters sent to those institutions on July 4, 2014, attached to the Order. Mr. Bullock failed to provide the responses, or an affidavit explaining why they were not provided.

[87] Based on the foregoing, I find that Mr. Bullock breached the Order of Van Melle J. dated February 17, 2015, and my Order dated June 17, 2010, requiring him to make financial disclosure.

d) The context

[88] Mr. Bullock opposed Ms. Bullock’s motion, in part, by arguing that the order of child support by Lemon J. should not have been made. This amounts to a collateral attack on Lemon J.’s Order and cannot be countenanced.

[89] Mr. Bullock’s counsel submits that his client’s motion to change is about child support for children who are now 23 and 24 years of age and, in his submission, are no longer entitled to receive support. He submits that the information which Ms. Bullock tendered in her affidavit of November 20, 2015, concerning Brandon’s disability by reason of depression and ADHD is not admissible. Ms. Bullock attached a letter dated September 28, 2015, from her counsel to Mr. Bullock’s counsel, which attached a letter dated July 22, 2015, from York University Counselling and Disability Services which supported her client’s evidence in this regard, as well as a Progress Report dated May 14, 2015, from William Osler Health System which detailed Brandon’s condition.

[90] I find that Ms. Bullock’s information is admissible. She identified the source of her information and stated that she believed it to be true. Mr. Bullock was entitled to cross-examine Ms. Bullock or the counsellor if he wished to challenge the contents of the letter. In K v. Public Trustee (1985), 63 B.C.L.R. 145, at para. 5 (C.A.), per Craig J.A., the B.C. Court of Appeal, allowed an appeal by the mother of a cognitively disabled adult daughter from a decision that refused the mother the right to consent to a surgical procedure on her daughter’s behalf. In doing so, Justice Craig upheld a motion judge’s reliance on a doctor’s letter attached to the mother’s affidavit on the basis that the doctor’s unavailability, due to illness, for cross-examination, was a matter that affected the weight of his report, not its admissibility.

[91] There is no dispute that Nicholas Bullock is autistic and is receiving ODSP in the amount of $900. Ms. Bullock acknowledges that fact. I am satisfied that the cost of Nicholas’ care exceeds the amount of his ODSP, and that the ODSP should not disqualify Ms. Bullock from receiving child support for Nicholas.

e) Conclusion

[92] Ms. Bullock has taken many steps to address Mr. Bullock’s non-compliance and non-disclosure. Mr. Bullock had over a year, and multiple court appearances on October 17, 2014, February 17, 2015, December 8, 2015, and January 26, 2016, to comply with the disclosure requests and his outstanding support obligations.

[93] Mr. Bullock’s failure to pay support, while not the principal 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), at para. 31, 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. Mr. Bullock simply waited for the FRO to garnish his wages.

[94] 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. I find that Mr. Bullock deliberately breached the Orders in the present case, by providing minimal disclosure and attempting to shield himself from his obligation to provide meaningful disclosure by alleging that he had separated from his common law spouse, who herself was a means of concealing his income.

[95] Mr. Bullock’s non-compliance with Lemon J.’s order for child support, together with his non-disclosure, have undermined Ms. Bullock’s ability to respond to his motion and prejudiced her ability to secure a fair determination of the issues on their merits. There can be no doubt as to the relevance of the records that Mr. Bullock has failed to produce. The fact that they were not produced will make it more difficult for Ms. Bullock to establish Mr. Bullock’s ability to pay support from the date of Lemon J.’s Order to the present. It will also make it more difficult for her to adjust the support amount and to establish Mr. Bullock’s ability to pay support on an ongoing basis. The delay caused by Mr. Bullock’s failure to make financial disclosure prejudices Ms. Bullock’s ability to enforce her retroactive child support and to resist an argument by Mr. Bullock that his arrears of support should be rescinded or reduced.

[96] Judicial restraint is required in the face of disobedience of court orders. See Prescott-Russell Services for Children and Adults v. G. (N.), (2006), 82 O.R. (3d) 686 (Ont. C.A.). 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. See Cuff v. Gales, [2014] ONSC 4756, at para. 28, citing Broniek-Harren v. Osborne, 2008 ONSC 19782.

[97] This is an exceptional case in which Mr. Bullock’s motion must be dismissed for deliberate non-compliance with the orders of the court, including the order that he seeks to vary. I find that Mr. Bullock intentionally breached the following orders:

[98] Justice Lemon’s Order dated April 4, 2012, requiring that he pay child support and his proportionate contribution to the children’s s. 7 expenses, in the amount set out in the current Statement of Arrears issued by the Family Responsibility Office;

1. Justice Lemon’s Order dated April 4, 2012, requiring, in paragraph 15, that he pay interest on the costs ordered, which I find amounts to $1,925.76.
2. Justice Lemon’s Order dated April 4, 2012, requiring him, in paragraph 12 a) to c), to produce proof that he has obtained life insurance coverage to secure the amount of his child support and obligations to contribute to the children’s s. 7 expenses.
3. Justice Van Melle’s Order dated February 17, 2015, requiring him to provide the financial disclosure set out in Schedule “A” of the order.
4. My order dated June 17, 2010, requiring him to provide the said financial disclosure, i.e. the financial statements of his auto body business.

CONCLUSION AND ORDER

[99] For the foregoing reasons, it is ordered that:

1. Mr. Bullock’s motion to vary is dismissed.
2. Mr. Bullock shall forthwith redeem his R.R.S.P., currently held with La Capitale Financial Group, which had a balance of $116,546.96 as of June 18, 2015, and pay the proceeds to the Family Responsibility Office to reduce the balance of his arrears.
3. Mr. Bullock shall pay Ms. Bullock’s costs of this motion, which I fix at $2,754.26, by April 13, 2017, plus 3% per year from the date of default.
4. Mr. Bullock shall not take further steps in the present proceeding without leave of the court, upon proof of compliance with this order.
5. If the parties are unable to agree on the costs of Mr. Bullock’s motion to change, they shall submit their written arguments, not to exceed four pages, plus their Costs Outline, by March 31, 2017.

Price J.

Released: March 15, 2017