Court File and Parties

Court File No.: FC-12-2899 Date: 2017-03-29 Ontario Superior Court of Justice

Between: Sarah Margaret Arnold, Applicant And: Christopher John Deere, Respondent

Counsel: Pamela J. MacEachern, for the Applicant In person, for the Respondent

Heard: March 23, 2017 at Ottawa

Reasons for Judgment KERSHMAN J.

Introduction

[1] This is a motion brought by Mr. Deere (the “Husband”) for an order setting aside all of the previous court orders, including a writ of seizure and sale.

[2] The cross-motion has been dealt with and is no longer the subject matter of this decision.

Factual Background

[3] The Husband and the Wife were married on May 10, 1986. According to the Wife, they separated on or about June 1, 2008. According to the Husband, in his Answer and Financial Statement sworn under oath, they separated on December 31, 2007.

[4] The Husband now argues that the parties separated in 2001 and provided an unsigned two page document entitled “Separation Agreement”. The Court has reviewed the purported Separation Agreement and finds it is not signed. This Court finds that the Separation Agreement is not valid and is no indication of the date of separation. The Court finds that the date of separation was either December 31, 2007, as set out in the Husband’s Answer and Financial Statement, or June 1, 2008, as set out in the Wife’s materials. The parties may have separated temporarily in 2001; however, the evidence does not point to the fact that this is a permanent separation since the parties lived together as a family and moved several times for the Husband’s postings with the Canadian Armed Forces. The 2001 date is not relevant for the purpose of this decision.

[5] There are two children of the marriage who are both adults and no longer children of the marriage for child support purposes.

[6] The Husband is a Navy Commander in the Canadian Armed Forces. The Wife is a Registered Nurse.

[7] The Application was started by the Wife and an Answer was filed by the Husband.

[8] The matter was first in court on March 18, 2013, before Master Roger (as he was then) by way of a case conference. Part of the Endorsement required each party to provide financial disclosure as soon as possible.

[9] A further case conference was held on March 14, 2014, before Justice Mackinnon. The Husband was not present. The Endorsement reads, in part, as follows:

Respondent is not here, although properly served and advised by Applicant’s counsel that he would appear by telephone. An order to go as signed by me today. Costs fixed at $1,000 against the Respondent due to his non-attendance payable within 30 days.

[10] On June 17, 2014, a settlement conference was held. The Endorsement reads, in part, as follows:

Pre-trial held. Respondent appeared by telephone. Respondent is in France and is unable to provide all of the disclosure outlined in the March 14, 2014. He will provide whatever he has available to him within 30 days. The remainder he will provide as soon as possible after he arrives in Canada. In any event, no later than 14 days before the next settlement conference date. Respondent must also file his settlement conference brief no later than 14 days before that date. The next settlement conference is October 22, 2014 at 10:00 a.m. Costs reserved to that date.

[11] On September 30, 2014, Justice Mackinnon made an Endorsement in the file because the Husband had requested an adjournment. That Endorsement reads:

Commander Deere has requested an adjournment of a Settlement Conference scheduled for October 22, 2014. This is a second Settlement Conference that has been scheduled for this case, and the second time that Commander Deere has requested an adjournment based on his work commitment overseas.

The adjournment request is opposed on the basis that no supporting confirmation of his inability to prepare and attend has been provided; he is in default of two court orders for disclosure, the longstanding nature of separation. Based on the material before me today, I am not prepared to adjourn the Settlement Conference. I will reconsider this decision should Commander Deere provide me with written documentation from his Commanding Officer that he has been unable and will be unable to address the scheduled court date.

This Commanding Officer should know that the dates of the two disclosure orders are March 14, 2014, and June 17, 2014, and that the Settlement Conference date of October 22 was scheduled on June 17, 2014. The Commanding Officer should also know that Commander Deere may attend the Settlement Conference by teleconference. This case is placed on the trial list for the two week sittings commencing May 25, 2015.

[12] The Settlement Conference was held on October 24, 2014 before Justice Toscano Roccamo. The Respondent was not present. The Endorsement reads, in part, as follows:

The Respondent is in breach of the orders of Mackinnon J. dated March 14, 2014, and Parfett J. dated July 17, 2014. Inadequate explanation has been furnished for his failure to deliver even that disclosure which he represented to Justice Parfett could be delivered in June 2014.

There has been an inordinate delay in these proceedings relating to the Respondent’s failure to participate and he has already adjourned the Settlement Conference once before. Mackinnon J. did not agree to grant a further request for adjournment without further proof from the Respondent that he could be in no position to attend to these proceedings. He was also granted leave to participate by phone. The Applicant has had to incur the cost evaluation of the Respondent’s pension and severance, and it would appear that substantial equalization is owed, quite apart from the Respondent’s. The refusal to pay spousal support or proportionate contributions to past section expenses for this children since this date of separation in 2008.

The Respondent is ordered to complete the disclosure within 30 days, failing which the Respondent’s pleadings may be struck and the Applicant may proceed to an uncontested trial. The Applicant shall have her costs of today and the attendance before Parfett J. fixed at $2,000 and payable forthwith by the Respondent.

[13] On May 19, 2015, a motion was held before Justice Kane to strike the Respondent’s pleadings. The Court notes that, while Mr. Deere did not appear at that motion, he was represented by counsel at the motion. That endorsement reads as follows:

Motion to strike Respondent’s pleadings is granted. If Respondent’s Commanding Officer ordered the Respondent to do something within 30 days, the Court anticipates the Respondent would do what was necessary to accomplish that task. Three court orders have effectively been ignored by the Respondent. Applicant court order is no less “commanding” in nature than the Respondent’s superior’s directive. Applicant entitled to her cost of today which pursuant to Rule 24(8) are full indemnity and fixed all in at $3,800 payable immediately.

[14] An order was made by Justice Patrick Smith on November 25, 2015, authorizing the Wife through her solicitor to obtain copies of the Husband’s personal income tax information from the Canada Revenue Agency for the tax years 2008 to 2014 inclusive, together with salary and compensation information from the Canadian Forces from the period 2008 to 2015.

[15] On December 16, 2015, three months prior to uncontested trial, the new lawyer acting for the Husband, James Barnes, sent the Wife’s lawyer a letter advising that the Husband would be providing all of his required disclosure within three weeks and would be moving to set aside the order of Justice Kane striking his pleadings as well as disclosure orders. Nothing further was heard from either the Husband or his counsel.

[16] An uncontested trial was held before Justice Mackinnon on March 8, 2016. The trial took approximately one day and resulted in a very lengthy final order dated March 8, 2016, a copy of which is attached hereto as Schedule “A”.

[17] The Court notes that that Justice Mackinnon’s order did not include any relief for child support or s. 7 expenses.

Issue

Should all court orders in this matter and the writ of seizure and sale issued be set aside?

Husband’s Position

[18] The Husband argues that the Wife “has misled the Court through distorted and erroneous information provided as evidence that the legal proceedings and arguments have been a continuum of deceptions, and that the accumulative effect of this strategy and mis-information has lead the Honourable Judges to make unfair Court Orders and Judgments that do not reflect the ‘primary objective’ of dealing with cases Justly.”

[19] The Husband also argues that “the disclosure demanded by the Applicant formulated the arguments of non-compliance which lead to the Court Orders made against him.”

[20] Lastly, the Husband argues that “despite correspondence to the Court regarding his non-availability to attend Court, costs were assigned to the Respondent in the case based on false claims with respect to non-accessible disclosure…”

[21] The Husband relies on rules 2(2)–(4) and 25(19) of the Family Law Rules, O. Reg. 114/99.

[22] In terms of case law, the Husband relies on the case of Losee v. Geordiadis (1998), 36 R.F.L. (4th) 238 (Ont. S.C.). He argues that this case provides guidance as to how the Family Law Rules and family law “regarding disputes and motives should be applied which relate directly in this case except that child custody was not an issue.”

[23] The Husband also relies on the case of Xidis v. Xidis, 2012 ONSC 6931, 26 R.F.L. (7th) 82, to deal with the lack of providing disclosure.

Wife’s Position

[24] The Wife argues that in the recent case of Gray v. Gray, 2017 ONCA 100, the Court of Appeal confirmed, at paras. 26–31, that rule 25(19) of the Family Law Rules gives a judge authority to set aside an order in family litigation including the definition of the word “change” under the rules as broad enough to include “setting aside”.

[25] The Wife argues that at common law, in determining whether an order should be set aside, the Courts have used the following factors as a guideline in exercising their discretion:

(a) whether the motion was brought promptly after the Respondent learned of the default judgment;

(b) whether there is a plausible explanation for the Respondent’s default; and,

(c) whether the facts establish that the Respondent has an arguable case on the merits.

See McDonald v. McDonald, 2015 ONSC 2605, 61 R.F.L. (7th) 357, at para. 47.

[26] The Courts will also consider any potential prejudice to the parties in allowing or denying the motion and the effect that any order may have on the overall integrity of the administration of justice: McDonald v. McDonald, at para. 48; Intact Insurance Co. v. Kisel, 2015 ONSC 205, 125 O.R. (3d) 365, at para. 14.

[27] The Wife argues that the Husband has waited until the final hour to participate in these proceedings.

[28] The Wife notes that the Husband has not appealed any of the orders, including the fourth order for disclosure from Justice Toscano Roccamo dated October 22, 2014, which ordered him to comply within 30 days, failing which his pleadings could be struck and the Applicant could proceed on an uncontested basis.

[29] The Husband also failed to appeal the order of Justice Kane, dated May 15, 2015, striking his pleadings even though he had legal counsel attend for him on that day and make submissions on his behalf.

[30] The Wife argues that the Husband returned from France on or about October 2015 and has failed to take any steps to preserve his right to participate since his return.

[31] The Husband’s return to Ottawa was prior to the final order of Justice Mackinnon dated March 8, 2016.

[32] The Husband had a lawyer, Mr. Barnes, write to counsel for the Wife advising that the Husband would, at that time, be providing outstanding disclosure and would be seeking to set aside the order of Justice Kane, striking his pleadings. The Respondent did neither.

[33] The Wife also argues that the Husband does not have a plausible explanation for his default. She claims that he uses his overseas postings as a convenient excuse as to why he cannot comply with the orders.

[34] The Wife also argues that the Husband’s claims in his motion materials have no merit and are merely bald assertions.

Analysis

[35] Rules 2(2), (3), and (4) of the Family Law Rules read as follows:

(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.

[36] The purpose of these rules is to ensure that the Court deals with cases justly.

[37] The Court endorsements of March 18, 2013, March 14, 2014, June 17, 2014, and October 22, 2014 are all very clear. They required the Husband to provide the requested disclosure, which he failed to do.

[38] At the uncontested trial, Justice Mackinnon gave extensive reasons for her decision as evidenced by the transcript filed.

[39] In addition, the Husband was ordered to pay costs on three different occasions, excluding the uncontested trial. Those occasions were March 14, 2014, October 22, 2014, and May 19, 2015. These costs total $6,800. Not one penny of those costs has been paid to date.

[40] Having reviewed the record in this matter, the Court finds that the Husband has not complied with disclosure orders as required and has not complied with costs orders as required, over a lengthy period of time.

[41] Since the primary objective of the Family Law Rules is to enable the Court to deal with cases justly, which includes ensuring that procedures are fair to all parties, saving time and expense, and dealing with cases in a way that are appropriate to its importance and complexity, the Court finds that the Husband has done everything but ensure that the procedure is fair to all parties. He has not saved time and expense. In fact, he has caused this proceeding to be lengthened by virtue of his delays.

[42] This case is important to the parties and was moderately complex. It was made infinitely more difficult and lengthy by virtue of the Husband’s lack of disclosure and his lack of attendance at the conferences, whether in person or by teleconference.

[43] In relation to rule 25(19), in terms of changing an order because of fraud, mistake, lack of notice, among other things, the Court does not find that the Husband has provided any evidence of fraud, mistake, or lack of notice with respect to any of the orders.

[44] In rule 2(3)(a) of the Family Law Rules, the Court notes that the procedure must be fair to all parties. He was given several opportunities to provide disclosure and did not do so.

[45] The Husband indicated through his lawyer at the time, Mr. Barnes, that he would provide the disclosure, but none was provided.

[46] In addition, the Husband returned to Ottawa on or about October 2015 and, since his return, has not provided any disclosure.

[47] The Husband says that his pilot’s license has been taken away; however, there is no evidence of that, nor an explanation why.

[48] The Court infers that this motion to set aside the orders was brought at a time when his license was taken away.

[49] The Court wonders whether the Husband would have brought this motion had his pilot license not been taken away.

[50] In addition, he was also ordered to pay costs on three separate occasions, not including the trial. He paid no monies towards those costs.

[51] Rule 2(3)(b) deals with the issue of saving time and expense. The Court finds that the Husband has been dragging his feet every step of the way and has only increased the costs of this litigation due to his behavior and failure to comply with court orders.

[52] Based on these factors, the Court finds that the Husband has not been dealing in good faith and has caused additional time, effort, and expense to be expended both by the Wife and the courts to bring this matter to a resolution.

[53] The Court does not find that the Husband has done anything to promote the primary objective of dealing justly with this case.

[54] The cases cited by the Husband, Losee v. Geordiadis and Xidis v. Xidis, are not helpful to him.

[55] Losee was decided on January 21, 1998. As of July 1, 2004, the Family Law Rules have come into place in Ontario. The Family Law Rules are a complete codification of the policy behind family law matters. The Court finds that Losee is prior to the Family Law Rules being proclaimed and rules 4, 5, and 6 of the former Provincial Court Rules do not apply in this case.

[56] In Xidis, the wife moved to strike the husband’s answer, in part for failure to provide financial disclosure in compliance with the Family Law Rules and with respect to a Court Order.

[57] The Court found that the husband continuously refused to comply with the Family Law Rules and agreements where he agreed to make financial disclosure by a specified date and consent orders. In that case, the Court found that the husband’s breaches of orders were deliberate and flagrant.

[58] The Court held, at para. 79, that

the case cannot be dealt with justly with the Husband’s failure to comply with the Family Law Rules, the agreements to make financial disclosure on the consent orders requiring the Husband to make specified financial disclosure in a timely way. The Husband’s misconduct utilizes valuable judicial resources to the detriment of other cases which could and should be dealt with more expeditiously.

[59] The Court went on to find that the excuses and explanations of the husband for his non-compliance with the consent orders of the Family Law Rules was not accepted and that the husband’s explanations for not producing the financial documents were not credible and only appeared on the eve of that motion. The Court went on to strike the husband’s Answer.

[60] This Court finds many similarities between the Xidis case and the present case.

[61] There has been failure to comply with court orders and lack of disclosure by the Husband.

[62] The Court finds that this case cannot be dealt with justly with the Husband’s failure to comply with the Family Law Rules and court orders.

[63] The Court finds that the Husband’s misconduct has utilized valuable judicial resources to the detriment of other cases which could and should have been dealt with more expeditiously.

[64] In terms of the factors quoted at paragraph 47 in McDonald v. McDonald, the Court finds that the Husband did not act in a timely fashion to bring this motion. He returned to Ottawa in October 2015 and brought this motion in October 2016, almost one year after his return.

[65] The Court does not find that there is any plausible explanation for the Husband’s default. Being posted in France is no excuse, particularly since he could participate by teleconference. He admitted returning to Canada at least once per year for two weeks at a time.

[66] As to whether the facts establish that the Husband has an arguable case on the merits, the Court finds that they do not. This is only another attempt to stall this proceeding and attempt to negate at least four court orders and three costs orders.

[67] For those reasons, the Court finds that allowing the orders to be set aside would be prejudicial to the Wife.

[68] For all of the aforesaid reasons, the Court dismisses the Husband’s motion.

Conclusion

[69] Based on the aforesaid analysis, the Court does not find any reason to set aside any of the court orders or the writ of seizure and sale in this matter. To do so would subvert the primary objective of the Family Law Rules.

[70] For the reasons set out above, the Husband’s motion is dismissed.

Costs

[71] The Court will now hear the parties in relation to the issue of costs in this matter.

[72] Order accordingly.

Mr. Justice Stanley Kershman Released: March 29, 2017

OTTAWA COURT FILE NO.: FC-12-2899 DATE: 2017/03/29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sarah Margaret Arnold Applicant – and – Christopher John Deere Respondent REASONS FOR JUDGMENT KERSHMAN J. Released: March 29, 2017