Court File and Parties

COURT FILE NO.: FC-08-73-2 DATE: 2019/04/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Xin Juan Jiang, Applicant AND Eric Parham, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Tanya Davies, for the Applicant Elizabeth Sheppard, for the Respondent

HEARD: April 24, 2018

The text of the original judgment was amended on April 18, 2019 and the description of the amendment is appended

Amended Endorsement

[1] The question raised by this motion is whether the court should strike the father’s pleadings responding to a motion to change brought by the applicant mother, and prevent further litigation by him without prior leave of the court. The mother’s motion to change seeks to terminate the access awarded to the father following trial. The “further litigation” refers to a motion the father has already delivered seeking to reduce his child support obligation, including on a retroactive basis. The essence of the mother’s case is that the father owes her $86,896 in outstanding costs and $38,594 in child support arrears.

[2] A brief history of the lengthy litigation between these parents is required. The parties have one child, born in August 2005, soon to reach thirteen years of age. Litigation commenced in 2008. The first application was administratively dismissed. The second proceeded to trial in 2015.

[3] Child support was ordered on a temporary basis by Justice Patrick Smith on September 24, 2013 after a contested motion at which both parties were present and participatory. In his lengthy reasons at 2013 ONSC 6003 Patrick Smith J. found that the father had not provided adequate financial disclosure, but had provided some information about his finances. He found that the father had worked for WiLAN Inc. as a Foreign Legal Consultant from August 2010 until September 2012. His pay stub showed year to date income from that source to September 14, 2012 of $124,269.22. His WiLAN record of employment also disclosed receipt of $22,255.74 in severance pay and $18,760.00 "other" monies. The father had not provided further updated financial statements despite repeated requests to do so. Under these circumstances the judge drew an adverse inference concluding that the father was purposely attempting to present an incomplete or inaccurate picture of his financial circumstances.

[4] After reviewing section 19(1)(f) of the Child Support Guidelines, SOR/97-175 Smith J. held that the father had failed to provide adequate financial disclosure, including evidence of his receipt of Employment Insurance, and for this reason imputed income to him. The court stated:

46 I am aware that it is impossible to make an accurate assessment of the Father's income at this point, but that is because he has not provided proper financial disclosure which should not be a reason to deprive the Mother of child support.

47 For the purpose of assessing the quantum of child support I find that the Father's income is $100,000.00.

[5] On December 5, 2014 Parfett J. struck the applicant’s pleadings on financial matters. In detailed reasons at 2014 ONSC 7060 she noted the court had refused the father leave to bring a motion to vary child support because he had failed to provide bona fide financial information. At the same time, on February 19, 2014, he had been ordered to make comprehensive financial disclosure within 45 days. Further orders were made requiring his compliance with existing orders in May and August 2014, including financial disclosure relating to his law practice in the United States and his employment with WiLan Inc. In her reasons Parfett J. stated:

17 Given the lack of useful information in his affidavit, I asked the Applicant directly if he had fulfilled the disclosure orders, costs orders and other orders that were made in the past twelve months. His answer – shorn of evasions – was to the effect that he thought he had fulfilled some of it but he was unable to point me to exactly what he had provided or done to comply with the orders.

22 However, there is no doubt that the Applicant has repeatedly and flagrantly disregarded court orders and there must be a consequence for that. I will order that his pleadings in relation to the financial aspects of this case be struck and that he will not be permitted to participate in the assessment of child support or arrears of child support or any other financial matter related to this case.

23 Despite the fact that his pleadings with respect to financial matters are struck, all previous orders in relation to the Applicant’s disclosure of financial information remain outstanding and he is required to fulfill those orders.

[6] The custody and access trial concluded in June 2015. Justice Sheffield awarded the mother sole custody and primary residence. He awarded the father unsupervised access during three weekends each month, with other provisions for holidays. Nearly $70,000 of the outstanding costs awards were ordered by the trial judge.

[7] On October 13, 2015 the mother obtained a final order on an uncontested basis requiring the father to pay child support in the same amount and on the basis of the same income as had been ordered on a temporary basis by Patrick Smith J.

[8] The process now before the court is the mother’s Fresh as Amended Motion to Change combining the relief asked for in an application she issued in March 2016 with that in her first Motion to Change commenced in April 2016. She seeks permission to obtain the child’s passport, to travel with her without the father’s consent, and to terminate the access awarded to him at trial. The father has responded to the Fresh as Amended Motion to Change, opposing the relief requested.

[9] A motion was heard by Shelston J. in the Fresh as Amended Motion to Change in August 2016. He suspended the trial order of access and made an interim order on a without prejudice basis allowing four hours of supervised access during alternate weekends. An order had already been made appointing the Office of the Children’s Lawyer. Shelston J. provided his order could be reviewed after the OCL, if it became involved, was able to provide further information to the court.

[10] Costs of this motion were fixed at $1,250 against the father.

[11] The OCL assigned an experienced investigator to the case. She delivered an incomplete report dated March 17, 2017; incomplete because the mother discontinued her participation in the process. The work done to that point did not include meeting the child or observing the child with the father. Based on collateral sources, the investigator reported the child felt comfortable with both parents and enjoyed her time with her father. The investigator also noted her impression that both parents struggled with self-regulation.

[12] At the conclusion of a settlement conference on August 4, 2017 Engelking J. endorsed that the father could bring a motion with respect to access only after he paid the outstanding cost award of $1,250. She also ordered that the mother could, if necessary, bring a motion to strike the father’s pleadings. The father did pay the $1,250. The parties then delivered the motions now before the court.

Should the father’s pleadings responding to the motion to terminate access be struck?

[13] The Ontario Court of Appeal has made it clear that special caution should be exercised before striking a parent’s pleadings in a custody or access matter. In Sleiman v. Sleiman that Court allowed a father to pursue his claim for access in the face of a finding that he had a blatant disregard for orders requiring financial disclosure. Only his pleadings in relation to financial issues were struck.

[14] More recently in D.D. v. H.D., 2015 ONCA 409 the Court reiterated its ruling in King v. Mongrain, 2009 ONCA 486 to the effect that, “a full evidentiary record, including the evidence of both parents, is generally required in order for the court to determine the best interests of a child.” The Court added at para 78 that it is preferable to avoid the striking sanction when the matter to be decided is custody or access.

[15] The mother is the moving party. She has the onus of proof on a balance of probabilities that there has been a material change in circumstances affecting the child’s best interests, and that terminating access is in the child’s best interests.

[16] The mother’s decision to discontinue her cooperation with the OCL investigator has already denied the court important, independent evidence touching on the child’s best interest. She justified her action by alleging bias against the investigator. Making that allegation does not excuse the mother from complying with the court order. She ought to have seen the investigation through to completion. The time to raise an objection is after the report has been completed as ordered by the court.

[17] There is other evidence in the motion record that if accepted could establish that the mother has frustrated the father’s exercise of access. The child will be better served if the court can evaluate this evidence. Given the lengthy, acrimonious litigation between these parents it should not be assumed that a full or even handed account would be forthcoming were only one party able to participate.

[18] On April 23, 2018, Justice Labrosse found the father not guilty of assault causing bodily harm to the mother. Labrosse J. made unflattering findings about the credibility of both parents. It is relevant to this motion to note that Labrosse J. did find the mother’s injuries were real, but also found parts of her testimony unbelievable. He found she had deliberately not disclosed essential evidence to the police and to the Crown. This judicial assessment relates to an event the mother relies on in support of her request to terminate access. It provides context for the Court of Appeal’s rulings on the importance of hearing from both parents when determining the best interests of their child.

[19] For these reasons, I dismiss the motion to strike the father’s pleadings on the access issues raised in the Fresh as Amended Motion to Change and in his Response to it.

Should leave be required before the father may proceed to seek a change to child support?

[20] The father has brought a motion seeking a temporary “adjustment” to the amount of child support on a retroactive and prospective basis. His motion is improperly brought because he did not seek a change to the final child support order in his Response to the Motion to Change. In any event, the mother submits that he should be required to obtain leave from the court before he may pursue a change in child support.

[21] I agree. The father has much to explain. The mother should not incur more legal expense until a judge has been persuaded that it is appropriate for the father’s case to go forward. He needs to explain his delay. Given his stated intention to seek a retroactive change he should also prove his compliance with the outstanding financial disclosure orders made against him in the previous case. His track record with respect to financial disclosure is such that he should be required to produce full financial disclosure with respect to each intervening year, before the mother is called upon to defend.

[22] The Court of Appeal could not have been any more clear in Manchanda v. Thethi, 2016 ONCA 909, where it stated:

13 Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11. In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

[23] In the context here where the father’s non-compliance in the prior application was egregious, it follows that full compliance will be required before the father should expect leave to proceed with a motion to change child support.

[24] His is not a case of a simple “adjustment” to the amount of child support. The disclosure the father assembles should be guided by the decision of Justice Pazaratz in Trang v. Trang, 2013 ONSC 1980. This important decision addresses the evidentiary requirements on a motion to change where the original support order was based upon imputed income. Particular attention should be paid to the following paragraphs:

46 But if the original support order was based upon "imputed" income, a more comprehensive analysis is required on a motion to change. The court must consider:

a. Why did income have to be imputed in the first instance? Have those circumstances changed? Is it still appropriate or necessary to impute income, to achieve a fair result?

b. How exactly did the court quantify the imputed income? What were the calculations, and are they still applicable?

51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on - or wait for - representations from the payor.

52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications - as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60 But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct - and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

[25] The outstanding costs are another factor. The time to appeal those awards has long since passed. No court has jurisdiction to change the amount outstanding. To date the father has ignored this obligation. He would be well advised to change tack, including by making immediate payments, taking active steps to dispose of the assets he owns, a building in Norwood, New York and a Volkswagen motor vehicle in Quebec, and paying the proceeds to the mother. If he is simply unable to pay, as he claims, then he should consider an assignment into bankruptcy to resolve the matter.

[26] I order that the father may not proceed with a motion to change child support without first obtaining leave of the court.

Case management orders

[27] I am exercising my discretion under the Family Law Rules rule 2 (3) and (5) which provide as follows:

(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. O. Reg. 114/99, r. 2 (3).

(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;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).

[28] A case management judge shall be assigned to this case. There shall be a trial of the parenting issues during the trial sittings commencing September 24, 2018. The temporary order of Shelston J. dated August 2016 shall remain in place until trial.

[29] A conference shall be scheduled forthwith with the case management judge to complete the Trial Scheduling Endorsement Form. The case management judge shall also be charged with the responsibility to determine any motion brought by the father for leave to proceed with a Motion to Change child support.

[30] The court requests the OCL to consider reassigning an investigator of its choice, which may include Ms. Norgaard, to complete the report for the assistance of the Trial Judge. The mother shall co-operate in full with the assigned OCL investigator to ensure the investigation is completed in full and on time.

[31] If the OCL does agree to complete its investigation then a settlement conference date shall be scheduled to accommodate the expected completion date of the report. The case management judge shall preside the settlement conference.

Costs

[32] Success appears to have been divided between the parties. If counsel disagree and wish to make submissions for costs they should arrange to do so through the trial coordinator’s office.

J. Mackinnon J. Released: April 18, 2019

Appendix

April 18, 2019: On page 1, the heard date of April 24, 2017 has been replaced with April 24, 2018