Court File and Parties

ONTARIO Superior Court of Justice

File Number: FS-17-418352

At: 393 University Avenue, 10th Floor Toronto, ON M5G 1E6

Date: July 4, 2018

Applicant(s): Nelida Vazquez Ortega Counsel: Ruth D. Richards

Respondent: Shawn Murphy Counsel: Self-represented (Duty Counsel present)

Before: F. L. Myers, J.

Endorsement

Order to go in accordance with minutes of settlement or consent filed.

The Motion and Outcome

[1] The applicant moves to strike out the respondent’s answer to permit the application to proceed on an undefended basis over-the-counter.

[2] For the reasons that follow, the motion is allowed. However, under Rule 1 (8.4)(2) of the Family Law Rules, leave is granted to the respondent to move to participate in the assessment of custody and access if, and only if, he pays his arrears of child support and proves on proper expert evidence that his failure to participate in these proceedings to date is a result of his mental health. If he also cures his disclosure defaults, he may also move to participate in the resolution of financial issues.

The Pleadings

[3] The application is dated July 7, 2017. The applicant seeks: a divorce, spousal support; child support for their 11 year old son; custody with access; interest, and costs.

[4] As best as I can tell from the materials in the file, the child lives with the applicant. While the respondent had been seeing his son on alternating weekends that may have subsided recently.

[5] The parties were married and lived for some time in Mexico. The applicant concedes that her ultimate plan is to move back there with the child. This thought apparently frightens and saddens the respondent.

[6] The respondent’s answer is handwritten. It is dated August 23, 2017 but the respondent did not deliver it until February 1, 2018. In his answer, he asks for 50/50 custody and access. He pleads that his earning capacity has been impaired by a stroke. He asks for disclosure of documents concerning Mexican property that he pleads was given to the parties on their wedding day.

The Respondent’s Failure to Participate

[7] The respondent is 42 years old. He represents himself in this proceeding. He has not filed any formal documents beyond his answer and the mandatory forms that accompany the answer. He has not delivered the required briefs for any conference. He has not disclosed required documents despite receiving repeated exhortations and chances to comply with the Family Law Rules.

[8] The respondent has not delivered any evidence on this motion or otherwise. Where I refer to the respondent’s statements below, they were said to me orally at the hearing. I do not accept the respondent’s statements as evidence. I rely on his oral submissions only for the fact that he said them rather than as admissible evidence to prove the truth of any facts that he asserts.

The First Case Conference

[9] On September 25, 2017, with the respondent’s consent, Hood J. ordered him to disclose within 45 days: a. Medical documents to verify his ability or inability to work; b. Copies of all bank statements for all accounts held in his name from January 2016 to present; c. Copies of all credit card statements for cards held in his name from January 2016 to present; d. Copies of all receipts and invoices for his business from January 16, 2016 to present; and e. Copies of his income tax returns and notices of assessment for the taxation years 2014, 2015, and 2016 within 60 days.

[10] Hood J. also scheduled a settlement conference for the parties on January 15, 2018.

[11] The disclosure ordered is both normal and somewhat narrow in scope. Objectively speaking, the disclosure order was not onerous as those types of orders go.

The First Settlement Conference

[12] The respondent did not deliver his answer, disclose any documents, or deliver the required settlement conference brief before attending the settlement conference on January 15, 2018. At the settlement conference, Croll J. ordered the respondent to deliver his answer and comply with the order made by Hood J. within two weeks.

[13] Para. 6 of Justice Croll’s order provided that if the respondent failed to file his answer or to make required disclosure within two weeks, the applicant could move to have the respondent declared to be in default.

[14] Justice Croll scheduled a new settlement conference for February 23, 2018. She ordered the respondent to pay costs to the applicant who had incurred legal expenses for a settlement conference that was a waste of time due to the respondent’s defaults.

The Respondent Fails to Comply Again

[15] The respondent did not comply with the order made by Justice Croll by delivering either his answer or any documents within two weeks. On January 30, 2018 the applicant brought a motion in writing to declare the respondent to be in default as provided by Justice Croll’s order.

[16] On receiving the motion material, the respondent delivered his answer that was dated the prior August. He also disclosed to the applicant copies of the first pages of bank statements for the one year period from December 17, 2016 to December 17, 2017.

[17] The motion to declare the respondent in default was dismissed by Hood J. because the respondent had partly complied with Justice Croll’s order before the motion was read.

The Second Settlement Conference

[18] The respondent did not deliver a settlement conference brief before attending at the second settlement conference on February 23, 2018. He did not complete his disclosure of bank statements. He did not disclose any other documents as ordered by Hood J. and Croll J.

[19] At the second settlement conference, Justice Stevenson provided the respondent another month, to March 26, 2018, to comply with his disclosure obligations and the two outstanding court orders. Justice Stevenson’s endorsement from that day provides: …The Respondent advises the Court that he served & filed his bank statements but that he doesn’t have credit cards. He also submits that he has not had time to go to the doctor’s to obtain his medical records nor to comply with the remaining disclosure. He is concerned that he needs more time. I have relayed to the respondent that he must comply with court orders or the Applicant may move to strike his pleadings & he will no longer be able to participate in these proceedings… We have had discussions regarding child support. None is being paid by the Respondent at present. The Respondent advises the Court that he will have earned approximately $58,000 gross in 2017. The Respondent is content to agree to a Consent order today to pay table child support of $536 per month commencing January 1, 2018…

[20] Justice Stevenson found that most of the conference was “a wasted attendance” due to the respondent’s continued failure to comply with his obligations under the Family Law Rules and the two outstanding orders. She ordered the respondent to pay costs of $350 to the applicant. She also scheduled a further settlement conference for May 7, 2018 and ordered that the parties “shall serve & file” settlement conference briefs one week prior to the conference date.

The Third Attempt to Hold a Settlement Conference

[21] On May 7, 2018, the parties appeared before Paisley J. The respondent did not deliver a settlement conference brief a week in advance or at all despite being expressly required to do so by Stevenson J. (and the Family Law Rules). He violated the orders of Hood J., Croll J., and Stevenson J. by failing to make any further documentary disclosure.

[22] Paisley J. adjourned the settlement conference with costs reserved to the next attendance. He also referred the parties to mediation.

The Motion to Strike

[23] On the day prior to this motion being heard, the respondent disclosed one further document to the applicant. It is a picture of a very short doctor’s note dated from March, 2018. The note says simply that the respondent is fit.

[24] The respondent gave no indication of why he had not disclosed the note in the months since he obtained it. The note does not begin to satisfy the respondent’s obligation to produce his medical records as discussed by Stevenson J. above. Neither is it any support for his pleading that he has a lessened earning capacity due to a stroke nor for his current indication that he is depressed (of which more is said below).

Analysis

[25] The respondent admits that he has violated several court orders and that he has not complied with the Family Law Rules throughout. He says that his non-compliance is his own fault and that he “owns it.” But he asks to be relieved of the consequences of his misconduct. He accepts none of the responsibilities of ownership.

[26] Without adducing evidence, the respondent says that his life is a mess and he is depressed. He could not bring himself to do the things he was required to do. He says he cannot get any further cooperation from his bank because he is in overdraft. He says that he has only done his 2014 taxes recently and he does not have a notice for assessment for it yet. He says that he does not know where his documentation of business expenses might be. He says that the applicant has many of his invoices on her computer already.

[27] It is apparent that the respondent has not made a good faith effort to comply with his obligations despite repeated indulgences by the applicant and the court. Moreover, he has not paid any of the costs awards that have been made against him. And he has stopped paying child support to which he consented before Stevenson J.

[28] The respondent has delayed the applicant’s proceeding with no corresponding advance in his own preparation. The only medical evidence that he has provided, late and unsworn, is a note that is contrary to his assertions both as to his earning capacity and his current mental state. To allow this to continue makes a mockery of the rules, the leniency displayed by the applicant and several judges, and any sense of efficiency as required to fulfill the primary objective of the Family Law Rules under Rules 2 (2) and (3).

[29] Just as financial disclosure is the most basic obligation in family law (Roberts v Roberts, 2015 ONCA 450) compliance with court orders is the most basic obligation in any organized system of even-handed justice (Surgeoner v Surgeoner, [1992] O.J. No. 299 (C.A.)). People cannot be free to ignore court orders in a society based on the rule of law.

[30] As noted in Roberts, striking pleadings is an extraordinary remedy that is to be used sparingly. In my view it is rightly used where a party’s conduct, cumulatively, discloses that he or she is simply unwilling to participate in the process. In this case, apart from filing his answer and supporting forms (six months late and only after the expiry of an order that put a time limit on his doing so) the applicant has not abided by a single obligation upon him. It does not matter how much time or leniency Mr. Murphy is provided, he will not be complying with the Rules or any court orders that require him to perform. He says that he wants to be heard. But he participates only on his own terms which do not include complying with timelines or orders, making the most basic disclosure of documents, paying child support, paying costs, or filing mandatory briefs.

[31] To allow an unsupported allegation of mental illness to excuse such blatant non-performance and repeated breaches of court orders would be an invitation to abuse. The applicant apparently completed his answer in August but held it back until after being ordered to file it in February. He had a doctor’s note in March and held it back until the day before the motion in June. He undertook the effort to separate the first pages of his bank statements from the rest of the pages and copied only the first pages for the applicant. I am unable to accept that these are innocent acts born of mental illness in the absence of medical evidence.

[32] However, in my view, it is important in this case to keep the door ever-so-slightly ajar to recognize the possibility that the respondent might be able to prove that he is or was suffering from mental health challenges that had the effect of impairing his ability to perform. Mental health issues are health issues and not necessarily just behavioural issues. If the respondent’s conduct or misconduct is a result of mental illness, that may well be an excuse or justification calling for further discretionary consideration. Recognizing that mental health issues are ubiquitous is important in the legal world just as it is in society generally.

[33] During the hearing the respondent made a very emotional plea to be allowed to advocate to protect his son’s relationship with him in light of the applicant’s desire to move with the child to Mexico. I can envision circumstances in which it would be in the child’s best interests for the court to hear the respondent’s submissions concerning access, the child’s residence, and, especially, the maximum contact principle. However, to justify further participation, the respondent must first satisfy the court that his multiple defaults to date are excusably born of mental illness. Moreover, the respondent’s emotional expression of concern for his son rings somewhat hollow while the respondent is in arrears of child support. His relationship with his son does not appear to have the priority in his deeds that he says it has in words.

Order

[34] The respondent’s answer is struck.

[35] Under Rule 1 (8.4)(2) of the Family Law Rules, leave is granted to the respondent to move for leave to participate in the resolution of the issues of custody, access, and residence of the child if, by the time set out below, he pays all arrears so as to be current on his child support payments and he serves on the applicant and files with the court, admissible, independent expert evidence, from a qualified health care professional, who attests that the respondent’s failure to participate in these proceedings to date was a direct consequence of a diagnosed mental health condition.

[36] If the respondent files medical evidence as set out in the preceding paragraph and also discloses all documents ordered by Hood J. (as reinforced by Croll J. and Stevenson J.) he will also be entitled to seek leave to participate in the resolution of financial issues.

[37] The applicant is free to move for an uncontested trial, oral or in writing, on and after August 15, 2018 unless the respondent has, prior to that time, obtained an order allowing him to participate on fulfilling the terms set out above.

[38] The applicant is entitled to her costs of the motion on a partial indemnity basis fixed in the amount of $5,000 all-inclusive and payable within 30 days.

Notice to the Respondent

[39] The respondent should understand that his opportunity to participate further in this proceeding is very limited and requires that he take all of the listed steps to collect evidence and bring a motion that is heard before August 15, 2018. Unless the respondent fulfills these conditions to obtain an order from another judge by August 15, 2018, the application will proceed without the respondent’s involvement. A last minute plea will not stop the application. If the respondent wants to participate, as he so emphatically claimed, he has one last opportunity to do so by doing very specific things: He must (a) pay all child support arrears; (b) obtain and file expert medical evidence as described above; and (c) if he wishes to participate in discussing financial issues, complete all disclosure as ordered. This must all be done and filed with the court in time to have a motion scheduled and heard before August 15, 2018.

F. L. Myers, J.