Court File No. FC-15-00000689-0000
SUPERIOR COURT OF JUSTICE
FAMILY COURT
IN THE MATTER OF: The Family Law Act, R.S.O. 1990,
c. F.3, s. 44
B E T W E E N:
SUSAN PATRICIA WOOD
Applicant
- and -
RAYMOND TODD EVANS
Respondent
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE T. D. RAY
on January 31, 2017, at OTTAWA, Ontario
APPEARANCES:
S. MonPremier Counsel for the Applicant
B. Hall Counsel for Respondent
SUPERIOR COURT OF JUSTICE
FAMILY COURT
T A B L E O F C O N T E N T S
LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered: February 1, 2017
Transcript Completed: February 4, 2017
Ordering Party Notified: February 7, 2017
R E A S O N S F O R J U D G M E N T
Introduction and Background
The applicant moves to strike the respondent's pleadings on the ground of non-payment of the many costs orders. By the time the motion was heard the respondent had paid the costs orders except for $7,500. The respondent brings a cross motion to set aside the order of Phillips, J. dated December 2nd, 2015 and to set aside all subsequent costs orders on the ground that the applicant had failed to disclose relevant information concerning child support, which if known would not have resulted in the child support order against the respondent.
Specifically, the respondent has produced a portion of the transcript before Phillips, J. in which the respondent asserted the child, Dalton, was still in school. The respondent says that further disclosure from the applicant December 7th, 2016 asserts that Dalton withdrew from school in 2015, which the respondent says meant that the applicant's counsel had made a false representation.
Even though the respondent says he was unaware until December 7th, 2016 that Dalton had withdrawn from school in 2015, he had persistently continued to drag out the proceedings. First, he refused to approve the order, then he appealed all of the orders and lost, then he refused to pay the costs awards.
Child Support
The applicant explained Dalton's schooling and his mental health issues at length in her affidavit of December 21st, 2016. She confirms that Dalton had worked part-time throughout and insists he was at school full-time. The respondent has produced no evidence to contradict the applicant's affidavit. The respondent has produced the affidavit of a private investigator that shows Dalton is working in July and August of 2016 for Tiger Construction. He earned a total of about $600.
The respondent took the court through the various medical information that established Dalton had serious mental health issues. Those reports post-dated the appearance before Phillips, J. He takes the position that the applicant has the onus to produce up-to-date medical information to prove Dalton continues to suffer from mental health issues such that he requires to continue to be under the care of his mother. Actually, he takes the position that the applicant must establish that Dalton cannot work. That is not the law.
The applicant has admitted throughout that Dalton has had part-time work while at school. He apparently is no longer currently in school. Phillips, J. found Dalton to continue to be in need of parental supervision by reason of his mental health issues.
I am satisfied those mental health issues continue. The respondent's private investigator does not contradict that fact. The applicant's recent affidavit is telling. She says that Dalton lives with her, that his mental health issues continue to be a struggle, and for that reason Dalton is unable to live independently and withdraw from her care. She says that Dalton is aware the respondent has a private investigator watching him and finds it upsetting.
The respondent's motion has no merit. None of the proceedings he brought had any merit, hence the costs orders against him. Counsel has spoken and have agreed they want an order for termination of the child support for Dalton. The respondent will agree to July 2016, while the applicant is agreeable to January 2017.
I am satisfied that Dalton continues to be "in need" and therefore in need of child support from the respondent. In accordance, however, with the agreement between counsel, child support will terminate January 31st, 2017.
Respondent's Conduct
The respondent's conduct of himself during these proceedings is very concerning. He has simply refused to accept court decisions and has decided to litigate and re-litigate everything. By his own admission he continues to be in arrears $7,500 for costs orders. He chose to hire a private investigator rather than pay costs orders.
The law is very clear when a litigant like the respondent decides to repeatedly disobey court orders and continue with endless meritless motions, he loses the right to use the courts; and I reference Levely v. Levely, 2013 ONSC 1026.
Costs
I'm satisfied that the applicant is entitled to her costs on a full indemnity basis. Before this motion even started, I alerted counsel to my concerns. I was invited by Mr. Hall to elaborate, which I did. So he had fair warning. My concerns -- the record, quite frankly, is disgraceful. This is a classic case of scorched earth approach to family law which must be condemned in the most profound language. I have absolutely no doubt in my mind whether it's under Rule 24 or Rule 1 or my general jurisdiction to discourage needless, meritless litigation, which it would be easy for one to conclude, is designed solely to drive the applicant to the point of surrender.
I can only conclude that the respondent was successful today in persuading the applicant to draw the line at January 31st, 2017 and even then was not prepared to concede to that and insisted it was July of 2016. As far as I'm concerned the evidence may well have supported a continuing obligation for support; however, I was not invited to make that decision, I was invited to decide between those two dates. I have no hesitation whatsoever in deciding that Dalton is entitled to support right through to January 31st, 2017.
As we all know child support orders, child custody orders are never final and it may well be that the applicant on reflection may want to bring a fresh application and renew an application for child support for Dalton; however, that's a decision she will make on the basis of advice from counsel.
However, I repeat, I have absolutely no hesitation in ordering costs against the respondent on a full indemnity basis. I accept the applicant's submissions. I accept the submissions of the quantum and I fix the costs at $12,000 payable forthwith by the respondent.
Outstanding Costs and Security for Costs
I am concerned that there continues to be an outstanding costs order of $7,500. Counsel has calculated the interest on that at $140.90 to-date for a total of $7,640.90, which remains outstanding. Non-payment of that when Mr. Hall stood up puts the respondent in breach of the rules. I said during argument the rules are characterized such that if the costs orders are made then you pay those costs otherwise you don't play.
And the respondent has persistently breached that such that should the respondent wish to bring any further proceedings he may not do so unless he first posts security in the amount of $5,000 as security for costs. I would expect that he in any event will have paid the sum of $19,640, the costs ordered to-date and should he wish to appear again in court in connection with any matter involving the applicant then he will be required to deposit $5,000 as security for costs.
I've already confirmed the date for the support which will continue until the end of January, (today), and that amount is a total of $13,143 with interest at $688.98. And Mr. Hall has agreed that there's an unpaid lump sum debt in the amount of $8,286.75 with interest on that at $193.43. And I've already addressed the question of the unpaid court costs at $7,500. Anything further?
MR. HALL: No, thank you.
MR. MONPREMIER: Thank you, Your Honour.
THE COURT: I'm going to excuse counsel. I have another matter to hear, so I'll excuse counsel.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Mary Clites
(Name of Authorized Person)
certify* that this document is a true and accurate transcript of the recording of
Wood v. Evans
in the
Superior Court of Justice,
Family Court
(Name of Case)
(Name of Court)
held at
Courtroom 20, 161 Elgin Street, Ottawa, Ontario
(Court Address)
taken from Recording
0411_CR20_20170131_094356_10_RAYT.dcr
, which has
been certified on Form 1.
February 4, 2017
(Date)
(Signature of Authorized Person(s))
- This certification does not apply to the Reasons for Judgment which were judicially edited.