Court File and Parties

COURT FILE NO.: FC-12-866-1 DATE: 2018/11/02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marco Ramey Rayes, Applicant -and- Sahara Dominguez-Cortes, Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Applicant, Self-Represented Odette Rwigamba, for the Respondent Allan Hirsch, for the Family Responsibility Office

HEARD: September 6, 2018

Endorsement

Overview

[1] This is a motion brought by the Applicant, Mr. Rayes, seeking to stay the enforcement of child support until his Motion to Change is determined. The Respondent, Ms. Dominguez-Cortes, has brought a cross-motion seeking to strike Mr. Rayes’ pleadings due to his non-payment of two previous cost orders.

[2] For reasons set out below, I dismiss Mr. Rayes’ motion, provide a further order with respect to the continuation of these proceedings, and award costs to the Respondent and Family Responsibility Office (FRO).

Factual Background

[3] The parties have a 13 year old son. There are two final orders that govern child support and parenting – the Order of Justice Kershman, dated April 12, 2013, issued on consent, and the Order of Justice Warkentin, dated January 23, 2014, issued after a four day trial (“the 2014 Order”).

[4] Mr. Rayes appealed the 2014 Order to Divisional Court. His appeal was dismissed on June 9, 2015 and he was ordered to pay costs to Ms. Dominguez-Cortes.

[5] In October of 2014, Mr. Rayes filed a Motion to Change the child support under the 2014 Order. He amended this motion in December of 2016 to also seek a change to the parenting provisions of the 2014 Order and the Order of Justice Kershman, dated April 12, 2013.

[6] In her response to the motion to change, Ms. Dominguez-Cortes seeks to change the parenting schedule from a 2-2-3 schedule to a week-on/week-off schedule, to change the summer parenting schedule, and other relief related to disclosure of Mr. Rayes’ income.

[7] The trial in this matter was scheduled to proceed on September 21, 2017. On that day, Ms. Dominguez-Cortes objected to the trial proceeding when there were two outstanding costs awards against Mr. Rayes. Justice Engelking agreed and, after giving Mr. Rayes some time to pay the costs, which he did not do, adjourned the matter sine die until Mr. Rayes provided proof of payments of the costs in full, at which time he could seek to have the matter relisted for trial.

[8] Justice Engelking made two endorsements on September 21, 2017, as follows:

“The Applicant has two outstanding costs awards against him, one from Warkentin, J. in 2014 for $7,500, $6,000 of which was subject to collection by FRO and which has been collected. The Applicant was to pay the Respondent the remaining $1,500 directly and he has not done so. The second costs award is from the Divisional Court in 2015 in relation to an appeal of the Warkentin J. Order and was for $8,000. The Applicant has not paid any of it. Pursuant to Rule 1(8)(e), I am not prepared to hear a Motion to Change brought by the Applicant until his outstanding costs orders are paid in full.

The matter is adjourned until 2 p.m. today to provide the Applicant an opportunity to pay the outstanding costs of $9,500 plus post-judgment interest. If he is able to do so, the trial will proceed today. If he is not, the matter will be adjourned until the Applicant has provided proof of payments of the costs orders in full.”

[9] On the afternoon of September 21, 2017, Justice Engelking made a second endorsement as follows:

“The Applicant was unable to secure funds to pay the outstanding costs orders totaling $9,500 plus post-judgment interest. The matter is therefore adjourned sine die until the Applicant has provided proof of payments of the costs in full, at which time he can seek to have the matters relisted for trial.

There will be no costs for today’s appearance. The Respondent is permitted to bring a motion to strike the Applicant’s pleadings.”

[10] Mr. Rayes did not appeal Justice Engelking’s Order of September 21, 2017.

[11] Mr. Rayes’ most recent financial statement, sworn August 25, 2018, lists the following:

• he receives income from a number of investment properties;
• his total assets are $2,806,276;
• his total debts are $1,719,500;
• his net worth is $1,086,776;
• one property was newly constructed in 2016; and
• he purchased two properties in 2017.

[12] Mr. Rayes has still not paid the cost awards owing under the January 23, 2014 and the June 9, 2015 Orders.

Mr. Rayes’ Position

[13] Mr. Rayes seeks to stay the enforcement of his child support payments until his Motion to Change is determined. The 2014 Order requires Mr. Rayes to pay child support in the amount of $594 per month. Mr. Rayes seeks to reduce this to $173 per month as of June 1, 2014. He claims his income is only $31,835 per year, being his line 150 income on his tax return, and not $65,000 per year as found in the 2014 Order. He also argues income should be imputed to Ms. Dominguez-Cortes.

[14] Mr. Rayes’ position is that he requires financial relief until his Motion to Change is determined. He claims significant debt and health problems. His position is that he has overpaid child support since June of 2014, and has been unable to have his Motion to Change determined despite his best efforts. He makes a number of accusations of improper conduct by Ms. Dominguez-Cortes, her counsel, the Family Responsibility Office, and others in the administration of justice. A significant portion of his complaints relate to matters that took place prior to the 2014 Order.

[15] Mr. Rayes confirms that he has not paid the costs. His position is that the costs are owed to Legal Aid Ontario, not to Ms. Dominguez-Cortes. He makes a number of allegations of fraud, unprofessional conduct, unethical conduct, and misconduct on the part of Ms. Dominguez-Cortes and her lawyer. Mr. Rayes’ position is that, due to this misconduct, he refuses to deal with anyone other than Legal Aid Ontario, which he states is currently investigating the matter, and as soon as this investigation is complete, he will make arrangements to pay the costs to Legal Aid Ontario directly.

Ms. Dominguez-Cortes’ Position

[16] Ms. Dominguez-Cortes’ position is that the September 21, 2017 Order of Justice Engelking prohibits Mr. Rayes from bringing any motion, including this one, until he has paid the costs. Ms. Dominguez-Cortes seeks Orders allowing her to file executions against Mr. Rayes’ properties to secure the cost orders, and to strike his pleadings due to his continued failure to pay the costs, despite having an ability to do so based on his financial circumstances. Ms. Dominguez-Cortes also states that Mr. Rayes’ motion materials were not served within the proper time period required under the Family Law Rules, although given the other arguments she is not seeking an adjournment of his motion.

The Family Responsibility Office’s (“FRO’s”) Position

[17] Given that Mr. Rayes is requesting a stay of enforcement, which impacts FRO’s enforcement proceedings, counsel for FRO attended the motion. FRO’s position is threefold:

1. Mr. Rayes’ motion cannot proceed given Justice Engelking’s September 21, 2017 Order;
2. In the alternative, Mr. Rayes’ request for a stay has not been plead properly and should be dismissed on this basis; and
3. In the further alternative, a stay of enforcement is equitable relief that should only be granted if Mr. Rayes has a prima facie case and “clean hands”. Neither of these conditions are met. Mr. Rayes’ request for a stay is an attempt to circumvent Justice Engelking’s Order and mount a collateral attack on the 2014 Order and the decision of the Divisional Court to dismiss his appeal of that Order.

Analysis

[18] I will address the issues in this motion on the following order:

1. The service of Mr. Rayes’ motion material;
2. Mr. Rayes’ motion seeking a stay of enforcement of child support;
3. Ms. Dominguez-Cortes’ motion to strike Mr. Rayes’ pleadings;
4. Ms. Dominguez-Cortes’ motion for an Order allowing her to register executions against Mr. Rayes’ property; and
5. Costs of this motion.

1. Service of Mr. Rayes’ Motion Material

[19] Mr. Rayes did not serve his Notice of Motion and affidavit material until the last possible date permitted under the [Family Law Rules][1]. I agree with Ms. Dominguez-Cortes that she was not provided with sufficient time to prepare responding material. Given my reasons below, there is no need to adjourn the motion for this reason, but I want to make it clear that I would have otherwise done so.

2. Mr. Rayes’ Motion to Stay Enforcement of Child Support

[20] Mr. Rayes’ Motion to Change continues to be “adjourned sine die until the Applicant [Mr. Rayes’] has provided proof of payments of the costs in full, at which time he can seek to have the matters relisted for trial.” This is what Justice Engelking’s ordered on September 21, 2017.

[21] Parties must comply with court orders. As Justice Quinn stated in [Gordon v. Starr][2], a court order is an order, not a suggestion.

[22] Mr. Rayes is not relieved of his obligation to pay the costs under the Order because he believes or alleges that Ms. Dominguez-Cortes is required to pay these costs to a third party. The 2014 Order and the June 9, 2015 Order are clear – the costs are payable to Ms. Dominguez-Cortes, not to anyone else. To comply with these orders, Mr. Rayes must pay the costs to Ms. Dominguez-Cortes.

[23] Accordingly, Mr. Rayes’ motion to change remains adjourned sine die until he pays the costs in full. This means that his entire Motion to Change proceeding is adjourned, and no further steps can be taken, until the costs are paid in full, subject only to the permission granted to Ms. Dominguez-Cortes to bring a motion to strike Mr. Rayes’ pleadings. Mr. Rayes’ motion is dismissed on this basis.

[24] I agree with counsel for FRO that Mr. Rayes’ motion should also be dismissed on the basis that it is not in the interests of justice to grant Mr. Rayes the equitable relief of a stay in these circumstances, where the only reason why his Motion to Change the 2014 Order has not proceeded to trial is his ongoing failure to pay costs, particularly in light of his financial circumstances.

[25] Based on the evidence before me regarding Mr. Rayes’ financial circumstances, I find that he has the ability to pay the costs but is refusing to do so for reasons that do not justify his non-compliance. This is also supported by Mr. Rayes’ position that he would make arrangements to pay the costs to Legal Aid Ontario as soon as their “investigation” is complete. If he can pay the cost to Legal Aid Ontario, he can pay these costs to Ms. Dominguez-Cortes, as he has been ordered to do.

3. Ms. Dominguez-Cortes’ motion to strike Mr. Rayes’ pleadings

[26] Ms. Dominguez-Cortes brought a cross-motion seeking an order that requires Mr. Rayes to pay the outstanding cost orders by a fixed date failing which his pleadings shall be struck.

[27] The power to strike pleadings is to be used sparingly and in [exceptional cases][3]. In family law cases, pleading should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would [suffice][4].

[28] At the same time, court orders must be complied with and non-compliance must have consequences. As Justice Chappell stated in [Levely v. Levely][5]:

“13 . . . Judicial response to a party's failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”

The objective of a sanction for failing to comply with court orders:

“ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the [court][6].

[29] The issue here is whether this case is one of those exceptional circumstances where Mr. Rayes’ pleading should be struck or whether a different remedy may be crafted to ensure compliance and address any resulting damage to the other party.

[30] I am not satisfied, at this time, that there is a sufficient basis before me to make an Order striking Mr. Rayes’ pleadings if he fails to pay the costs within a set time frame. Mr. Rayes has now been clearly advised, through these reasons, that he cannot avoid paying the costs owed under the January 23, 2014 and June 9, 2015 Orders by taking the position that the costs are payable to someone other than Ms. Dominguez-Cortes. It should also be clear to Mr. Rayes that his Motion to Change will not proceed, in any way, until he pays these costs. To compel Mr. Rayes to comply with his obligation to comply with the cost orders, I reiterate that Justice Engelking’s Order of September 21, 2017 remains in place until he does so.

[31] Given the lengthy history of Mr. Rayes’ failure to comply with the previous cost orders, and his conduct in bringing this motion in the absence of paying the costs in full, I find that it is also appropriate and just to make a further order that Mr. Rayes’ Motion to Change proceedings is stayed until he pays the costs owed under the January 23, 2014 and June 9, 2015 Orders in full, as well as the costs payable on this motion, awarded below, including any post-judgment interest. This stay does not prevent Ms. Dominguez-Cortes from taking steps to move forward in her Motion to Change in which she seeks a change in the parenting schedule, including Ms. Dominguez-Cortes bringing a motion for summary judgment or other relief, or setting her motion to change down for trial.

[32] Counsel for FRO advised that although it had been assumed by Justice Engelking in her September 21, 2017 Endorsement that Mr. Rayes had paid all of the $6,000 of the costs enforceable through FRO under the January 23, 2014 Order, this may not be the case. In other words, although Justice Engelking assumed only $9,500 was owed under those orders, this may be incorrect. To be clear, my Order above requires Mr. Rayes to pay all outstanding costs, whatever those may be.

[33] In the event that Mr. Rayes does not pay all of the costs owed (under the January 23, 2014 Order, the June 9, 2015 Order, and this Order) in full prior to January 15, 2019, Ms. Dominguez-Cortes may bring a motion to strike Mr. Rayes’ pleadings, including submissions on whether Mr. Rayes should be permitted to participate in any way at trial on the parenting or other issues.

4. Ms. Dominguez-Cortes’ motion for an Order allowing her to register executions against Mr. Rayes’ property

[34] Ms. Dominguez-Cortes requested orders allowing her to file executions on various properties owned by Mr. Rayes to secure the costs awards owed to her. I decline to make such an order giving that the existing orders may already be enforced under Rules 26 to 31 of the Family Law Rules, including the right to issue a writ and seizure and sale under Rule 28.

5. Costs

[35] Ms. Dominguez-Cortes sought full recovery for her costs of this motion in the amount of $4,716 plus disbursements and HST, for a total of $5,366.82. Her counsel’s bill of costs supported this amount. Ms. Dominguez-Cortes’ counsel’s hourly rate is $300, which I find is reasonable given that she has been practicing since 2003. Ms. Dominguez-Cortes’ counsel spent 12.72 hours preparing material in response to Mr. Rayes’ motion, and included three hours for the appearance before me.

[36] FRO sought costs fixed in the amount of $500, based on partial indemnity for costs incurred.

[37] Mr. Rayes opposed any award of costs being made against him on the basis that he is not acting maliciously or unfairly, everything he has said is true, that he is the victim in this matter, and that the request for costs is obscene and offensive.

[38] The Ontario Court of Appeal in [Mattina v. Mattina][7] recently confirmed that the modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: and to ensure that cases are dealt with justly ([Rule 2(2) of the Family Law Rules][8]).

[39] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.

[40] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be [entitled to costs][9]: An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the [successful party][10].

[41] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

“(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter.”

[42] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).

[43] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:

“Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.”

[44] Rule 24(5) provides guidance on how to evaluate reasonableness:

“In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.”

[45] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:

“If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”

[46] The central essence of the appearance before me was Mr. Rayes’ motion to stay the enforcement of child support. When considering the whole of the motion, Ms. Dominguez-Cortes was successful before me and is presumptively entitled to costs. FRO was a proper party to the motion to stay enforcement and was also successful. FRO is also presumptively entitled to an award of costs.

[47] I find that Mr. Rayes’ behaviour in bringing this motion to stay was not reasonable given the order made by Justice Engelking on September 21, 2017 and his failure to pay the previous cost orders. Mr. Rayes made repeated references to other people or agencies being responsible for his actions, for example, by telling him to bring this motion, telling him to file certain forms, telling him to take certain steps, etc. Without determining what other people or agencies may have told Mr. Rayes, I find that he is responsible for his own conduct in this matter. He does not escape responsibility by laying the blame on others. Ultimately, he has agency over his own actions and must act accordingly. This includes being responsible for complying with the Family Law Rules and being accountable to the rules of law that govern this proceeding.

[48] In my view, Ms. Dominguez-Cortes’ and FRO’s presumptive entitlement to costs is not rebutted. I find that the costs sought by Ms. Dominguez-Cortes and FRO are reasonable and proportional, particularly given the lack of notice given to them to respond to this motion. Given the position of Mr. Rayes’, Ms. Dominguez-Cortes and FRO could not have avoided this motion or the costs incurred to respond, with the exception of a small portion of Ms. Dominguez-Cortes’ costs related to seeking executions, which I find were not necessary. Given the previous cost orders, Mr. Rayes’ ought to have expected that costs of this nature would be incurred, and may be awarded against him if he was not successful.

[49] Having considered the reasonableness and proportionality of the relevant factors, I order that Mr. Rayes pay Ms. Dominguez-Cortes costs of this motion fixed in the amount of $4,500 and that Mr. Rayes pay FRO costs of this motion fixed at $500. As stated above, these costs are required to be paid in full before Mr. Rayes’ may proceed with any further steps in his Motion to Change.

Summary of Orders

[50] I have made the following Orders:

1. Mr. Rayes’ motion to stay the enforcement of the child support payable under the January 23, 2014 Order is dismissed.
2. Mr. Rayes’ Motion to Change proceedings, filed October 9, 2014 as amended pursuant to the Order of Justice Doyle dated December 1, 2016, are hereby stayed until Mr. Rayes pays the costs owed under the January 23, 2014 and June 9, 2015 Orders in full, as well as the costs payable on this motion set out #4 below, plus any pre-judgment interest. This stay does not prevent Ms. Dominguez-Cortes from taking steps to move forward in her Motion to Change in which she seeks a change in the parenting schedule, including Ms. Dominguez-Cortes bringing a motion for summary judgment or other relief, or setting her motion to change down for trial.
3. In the event that Mr. Rayes does not pay all of the costs owed (under the January 23, 2014 Order, the June 9, 2015 Order, and this Order) in full prior to January 15, 2019, Ms. Dominguez-Cortes may bring a motion to strike Mr. Rayes’ pleadings, including submissions on whether Mr. Rayes should be permitted to participate in any way at trial on the parenting or other issues.
4. Mr. Rayes shall pay Ms. Dominguez-Cortes her costs of this motion fixed in the amount of $4,500. Mr. Rayes shall also pay FRO its costs of this motion fixed at $500. As per #2 above, these costs shall be paid in full before Mr. Rayes’ may proceed with any further steps in his Motion to Change.

Justice Pam MacEachern Date: November 2, 2018

Released: November 2, 2018

[1]: Family Law Rules, O.Reg. 114/99 as am., Rule 14(11) [2]: Gordon v. Starr, 42 R.F.L. (6th) 366 (Ont. S.C.) at para. 23 [3]: Roberts v. Roberts, 2015 ONCA 450 [4]: Chiaramonte v. Chiaramonte, 2013 ONCA 641; Kovachis v. Kovachis, 2013 ONCA 663 [5]: Levely v. Levely, 2013 ONSC 1026, at paras. 12 and 13 [6]: Purcaru v. Purcaru, 2010 ONCA 92, at para. 47 [7]: Mattina v. Mattina, 2018 ONCA 867 [8]: Family Law Rules, rule 2 (2) [9]: M. (C.A.) v. M.(D.), [2003] O.J. No. 3707, at para. 40 [10]: Berta v. Berta, 2015 ONCA 918 at para. 94