Jiang v. Parham, 2019 ONSC 2131

Xin Juan Jiang v. Eric Parham

COURT FILE NO.: FC-08-73-2

DATE: 20190404

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Xin Juan Jiang

Applicant

– and –

Eric Parham

Respondent

Tanya C. Davies, Counsel for the Applicant

Self-represented

HEARD: February 28, 2019

REASONS FOR DECISION

Parfett, J.

1The Applicant is seeking an order postponing the trial until the outstanding costs orders are paid or an order for security for costs for the trial scheduled to start in May 2019. The Respondent is seeking leave of the court to bring his motion to vary child support.

Background

2The history of this case is long and torturous. The parties were married briefly and had one child, born August 2005. She is soon to be fourteen years old. The litigation started in 2008. Consequently, this child has never known a time when her parents were not embroiled in legal disputes.

3A final order with respect to custody and access was issued on July 2, 2015. In his decision, Justice Sheffield cautioned the parents and the father in particular about continuing behaviour that was inappropriate and detrimental to the child’s best interests.

4On May 6, 2016 a motion to change was filed by the Applicant, Xin Juan Jiang requesting that the Respondent, Eric Parham’s access to their daughter be terminated. This motion was triggered by an assault allegation dated January 2016. The Respondent was alleged to have assaulted the Applicant. The Respondent was released on conditions to have no contact with the Applicant or their child except pursuant to a court order. The assault charge was ultimately dismissed.

5There was an order granted on consent requesting the assistance of the Office of the Children’s Lawyer. The OCL consented to involvement with the family but that involvement was discontinued when the Applicant refused to participate in the assessment. A partial report was prepared that indicated the child was comfortable with both parents.

6On August 10, 2016 there was a motion in relation to the Respondent’s access. In his decision, Justice Shelston outlined the lengthy and acrimonious litigation between these parties. A temporary order for supervised access to the father was issued.

7Nothing further was done with respect to this file until August 4, 2017 when the Respondent was granted leave to bring a motion in relation to access as soon as an outstanding costs order of $1250 was paid in full.

8On April 24, 2018 a further motion was heard by this court. The motion encompassed several issues: the Applicant renewed her request to terminate the Respondent’s access, and the Applicant sought to have the Respondent’s pleadings struck as a consequence of outstanding costs orders ($86,896) and arrears of child support ($38,594). The Respondent brought a cross-motion to reduce his child support. The motion to strike the Respondent’s pleadings and terminate access was denied. On the other hand, the court ordered that the Respondent could not proceed with a motion to change child support without first obtaining leave of the court.

9As part of that decision, the judge noted,

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.

[The Father] 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.

10In the interim, the Applicant sought to have the child support order issued in Ontario registered in New York State where the Respondent stated he was living. The Respondent vigorously opposed the registration of the order claiming there had been a breach of due process. Those claims were rejected, both in the first instance and on appeal. However, the Respondent now indicates he is working in Montreal, Quebec.

11For the purpose of this present motion, the court only has to determine what, if any, conditions should be imposed on the parties in order to move this case forward in an efficient manner.

12The Applicant contends the court should order security for costs for the upcoming trial given the Respondent’s history of not paying costs. Alternatively, the Applicant argues that the Respondent should be required to pay the outstanding costs orders before the trial proceeds.

Legal Principles

13Section 106 of the Courts of Justice Act¹ states,

A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

14Rule 1(8) of the Family Law Rules² states,

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

a) an order for costs;

f) an order postponing the trial or any other step in the case.

15The relevant portions of Rule 12(13) of the FLR indicate,

A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.

2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

16As noted in the caselaw, the principle that a party must comply with court orders sometimes comes into conflict with the principle that there must be access to justice. Consequently, the court must carefully balance these principles and apply the power to stay or postpone the proceedings sparingly.

Analysis

17In the present case, there is ample evidence that the Respondent has failed to pay his outstanding costs awards. Approximately $13,900 of costs were ordered to be enforced by the Family Responsibility Office (FRO) in the same manner as child support.³ Essentially, these costs orders remain unpaid. The costs order of December 14, 2015 in the amount of $69,520.36 arising from the trial also has not been paid.⁴

18In addition, the Respondent has made only minimal efforts to pay child support. He has paid $800 in the past 15 months and still owes $47,387 in arrears of child support.⁵ In my view, the Respondent’s efforts with respect to payment of both arrears of child support and ongoing child support are completely inadequate to justify granting leave of the court to proceed with his motion to vary child support. A much more significant contribution towards the arrears of child support is required.

19With respect to the issue security for costs, the Respondent provided the following information in his affidavit in relation to his residence:

To be more specific, the Father resides in Montreal, where he spends his highest percentage of time. (…) The Father remains domiciled in Connecticut, where he was born and last had an intention to remain indefinitely. He may also be said to live in Ottawa during at least school-term care of the child, and in New York where he is required to maintain a presence for occupational purposes.⁶

20I find on the basis of all the information in the Respondent’s affidavit that he is ordinarily resident in Montreal, Quebec, but travels regularly to Ottawa to see his daughter.

21As a result, the Respondent meets two of the criteria set out in R. 12(13).

22The Respondent argues that he is impecunious. He owns property in the United States, but says that it is worth very little and is encumbered with unpaid property taxes.⁷ He owns a vehicle but states it is very old and again worth very little.⁸ I note that he has provided no confirmatory evidence of the value of his property in the United States and no evidence there are any unpaid property taxes. In addition, he has provided no confirmatory evidence of the age and value of his vehicle. He states that he has ‘stifling legal costs’ and is struggling to pay his legal bills.⁹ Once again, however, there is no supporting documentary evidence confirming the existence of the outstanding legal bills.

23The Respondent is a full qualified lawyer in the United States and is waiting to be called to the bar in Ontario. He is clearly capable of earning a substantial income. However, the Respondent alleges that in 2018, he earned gross income of approximately $43,000 and he suggests that his net income was between $11,000 and $22,000.¹⁰ The Respondent filed a financial statement, with his U.S. tax returns attached.¹¹ This statement indicates that in 2017, he earned $13,761. In 2016, his income was $85,289 and in 2015, his income was $8,412. In his financial statement, the Respondent indicates that his yearly expenses are $59,424. There is presently a significant disconnect between the Respondent’s income and his expenses.

24Based on this evidence, the Respondent would appear to be in dire financial straits. Consequently, I have significant concerns with respect to ordering the Respondent to pay security for costs or ordering him to pay outstanding costs awards before being permitted to proceed with this motion to change. The same principles outlined in Justice Mackinnon’s decision in relation to the motion to strike the Respondent’s pleadings apply in the present situation.¹²

25In my view, any monies the Respondent has at his disposal should be paid towards the child support arrears and ongoing child support. The Respondent has already been advised to liquidate his assets so as to deal with arrears of child support and the outstanding costs awards. I will not repeat those recommendations here. Consequently, l will not order security for costs nor will I order a stay of the proceedings. This motion to change should proceed as expeditiously as possible

Conclusion

26The Applicant’s motion is dismissed.

Costs

27The parties should resolve the issue of costs themselves if possible. However, if the parties cannot resolve the issue of costs, brief written submissions of not more than one page, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided within 15 days with a right of reply within a further five days.

Footnotes

1. 1R.S.O. 1990, Chap. C.43.
2. 2O. Reg. 114/99, as amended.
3. 3Exhibit R, tab 3, vol. 4 of the Continuing Record.
4. 4Exhibit S, tab 3, vol. 4 of the Continuing Record.
5. 5Exhibit D, tab 3,
6. 6Paragraph 23, Tab 4, vol. 4 of the Continuing Record.
7. 7Paragraph 208, Tab 4, vol. 4 of the Continuing Record.
8. 8Paragraph 209, Tab 4, vol. 4 of the Continuing Record.
9. 9Paragraph 206, Tab 4, vol. 4 of the Continuing Record.
10. 10Paragraph 195, Tab 4, vol. 4 of the Continuing Record.
11. 11Tab 1, vol. 3 of the Continuing Record.
12. 12See Jiang v. Parham, 2018 ONSC 2706 at paras. 13-14.```