Court File and Parties

COURT FILE NO.: FC-18-FS000227-00AP DATE: June 28, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: T.R. Applicant/Respondent on Appeal – and – M.D. Respondent/Appellant

COUNSEL: Duncan A. R. Crosby, Counsel for the Applicant/Respondent John Allan, Counsel for the Respondent/Appellant

HEARD: June 26, 2019

REASONS FOR JUDGMENT

Justice Engelking

[1] This is an Appeal brought by Mr. M.D. with respect to an order of the Honourable Mr. Justice M. B. March of the Ontario Court of Justice dated October 29, 2018 in which he struck Mr. M.D.’s Response to Motion to Change and directed that Ms. T.R. could proceed to an uncontested trial.

Background Facts

[2] In August of 2016, Ms. T.R. commenced a Motion to Change the Final Order of Justice Selkirk dated October 28, 2015, which was a final order placing the parties’ child, N. R. A. D., born [...], 2010, in the custody of Mr. M.D. with reasonable access on notice to Ms. T.R. pursuant to s. 57.1 of the Child and Family Services Act. Ms. T.R. was, at that time seeking an order for increased and specified access to N.

[3] The history of the proceedings is relevant to some of the findings and/or comments in Justice March’s decision of October 29, 2018, so I will set them out as succinctly as possible:

• October 28, 2015 – Final Order of Justice Selkirk pursuant to s. 57.1 of the CFSA;
• August 11, 2016 – Ms. T.R. files her Motion to Change Justice Selkirk’s order;
• September 26, 2016 – First appearance. Mr. M.D. did not attend and did not file any response;
• October 24, 2016 – Case Conference. Mr. M.D. was present but did not file any materials. Ms. T.R. was granted leave to bring an interim motion for access;
• October 31, 2016 – Ms. T.R.’s motion for access. Mr. M.D. appeared but did not file any responding materials. Access was granted to Ms. T.R. to be supervised by her mother;
• November 21, 2016 – Court appearance at which an order was made lifting the requirement for supervision of Ms. T.R.’s access. Mr. M.D. was present;
• December 19, 2016 – Court appearance at which Ms. T.R.’s Christmas access was determined, and her regular access was expanded. Mr. M.D. was present;
• January 30, 2017 – Case Conference. Mr. M.D. was not present and the matter was adjourned to February 27, 2017;
• February 27, 2017 – Case Conference. Mr. M.D. was not present, matter adjourned;
• March 13, 2017 – Mr. M.D. was not present, matter adjourned;
• April 10, 2017 – Mr. M.D. was not present, matter adjourned;
• May 8, 2017 – Mr. M.D. was not present, matter adjourned;
• June 25, 2018 – Mr. M.D. attended court and was advised that Ms. T.R. had set the matter down for a Summary Judgment Motion;
• July 10, 2017 – Summary Judgment Motion. Mr. M.D. did not attend and did not file any materials. Justice Selkirk made a further temporary order significantly expanding Ms. T.R.’s access to N. and ordered that Mr. M.D. was to provide Ms. T.R. with a notarial copy of N.’s OHIP card and birth certificate “forthwith”. He also made an order of costs against Mr. M.D. of $1500;
• August 14, 2017 – Ms. T.R. was granted a week of summer access and leave to amend her pleadings to include a claim for custody of N. Mr. M.D. was present. The matter was adjourned to September 11, 2017;
• September 11, 2107 – Mr. M.D. was not present and Ms. T.R. was granted an adjournment to amend her pleadings and set a new case conference;
• September 23, 2017 – Mr. M.D. was served with Ms. T.R.’s Amended Motion to Change;
• December 4, 2017 – Case Conference. Mr. M.D. was present but did not file a case conference brief. Mr. M.D. was ordered to pay costs of $250 to Ms. T.R.;
• January 22, 2018 – Settlement Conference. Mr. M.D. was present but did not file a settlement conference brief;
• February 26, 2018 – Trial Management Conference. Mr. M.D. was present but not prepared. He did not file a trial management conference brief. Mr. M.D. was ordered to pay costs of $250 to Ms. T.R.;
• March 19, 2018 – Trial Management Conference. Mr. M.D. was present. Ms. T.R. was granted leave to bring a motion for interim custody of N.;
• April 10, 2018 – Ms. T.R.’s Motion for interim custody. Mr. M.D. was present but did not file any materials. Justice March made a temporary order for sole custody of N. to Ms. T.R. with specified access to Mr. M.D.. He also ordered Mr. M.D. to immediately deliver N.’s OHIP card and Birth Certificate to Ms. T.R.. Justice March additionally ordered Mr. M.D. to pay costs of $1500 to Ms. T.R.;
• May 17, 2018 – Trial Management Conference. Mr. M.D. was present. The conference was adjourned on consent as Mr. M.D. had only recently retained counsel, Mr. Allan;
• June 18, 2018 – Mr. M.D.’s Motion to the Superior Court of Justice to stay the order of April 10, 2018 was dismissed by Justice James;
• June 25, 2018 – Trial Management Conference. Mr. M.D. was present with Mr. Allan. The trial of the matter, which was scheduled for three days, was confirmed to proceed on July 3, 2018;
• July 3, 2018 – Trial. Neither Mr. M.D., nor Mr. Allan (on Mr. M.D.’s instructions) appeared. The matter was adjourned to July 4, 2018; and,
• July 4, 2018 – Trial. Mr. M.D. did not appear. Mr. Allan appeared and sought and was granted an adjournment of the trial to January 2 to 4, 2019.

[4] At some point within a few months of Ms. T.R.’s initial pleadings, Mr. M.D. did file a Response to Motion to Change or Answer, but I did not have a copy before me. It appears that this Response to Motion to Change (or Answer) is the only document Mr. M.D. has ever served and filed with the Ontario Court of Justice. (He, of course brought a motion in the Superior Court of Justice seeking an order to stay the order of Justice March of April 10, 2018, so presumably documents were filed in that proceeding). It does not appear that he has ever filed an Amended Response to Motion to Change in response to Ms. T.R.’s Amended Motion to Change. Nor, according to Justice March’s endorsement of October 29, 2018 or the transcript of October 18, 2018, has he ever filed a Financial Statement in these proceedings prior to that date.

[5] In addition to adjourning the trial, Mr. Justice March’s order of July 4, 2018, included the following provisions which are relevant to this proceeding:

1. This court strongly recommends the involvement of an OCL representative to assist with eliciting the views and preferences of the subject child, N…
2. Further, the Respondent, M.D., shall pay costs to the Applicant, T.R., in the sum of $500.00 on or before October 1, 2018 as against the existing, outstanding costs awards made against him, failing which his pleadings shall be struck.
3. The Respondent, M.D., shall forthwith turn over to his solicitor, Mr. Allan, N.’s Birth Certificate and Health Card. Upon receipt of this documentation, Mr. Allan shall forward same to Mr. Crosby by overnight courier.

The October 18, 2018 Motion to Strike

[6] On October 18, 2018, the parties appeared before Mr. Justice March, with Mr. Allan attending by telephone. Mr. Crosby appears on that date to have brought an oral motion to strike Mr. M.D.’s pleadings on the basis that he failed to comply with Justice March’s order of July 4, 2018, by a) not paying the $500 he was required to pay by paragraph 6 of the order, and b) by not providing N.’s OHIP card or birth certificate as per paragraph 8 of the order.

[7] With respect to the first issue, Mr. Allan conceded on behalf of Mr. M.D. that “the triggering event” had occurred, in that Mr. M.D. did not pay the $500 he was ordered to pay, and indicated that his explanation for not doing so was because “he is impecunious”. Mr. Allan went on to say: “Indeed, he doesn’t have income, he relies on his fiancé’s ODSP cheque and this has been going on since last year. He still doesn’t have a job”. Later in the transcript, Justice March inquired as to whether Mr. M.D. had ever filed a financial statement in the proceedings, to which inquiry the answer was ultimately “no”. Mr. Crosby also pointed out in reply that Mr. M.D. had provided no affidavit evidence as to his impecunious status, and, in any event, such was known to the court on July 4, 2018, when the order requiring him to pay $500 was made.

[8] In regards to the second issue, that of the OCL, Mr. Allan raised it at the hearing in the context of his arguments about the best interests of the child by saying thus: “Besides this issue of the OCL being involved and that would also impact on the Court, I believe, to take a position that would be longstanding.”

[9] Ms. T.R.’s position on the motion was that due to Mr. M.D.’s failure to fulfill the terms of Justice March’s July 4, 2018 order, a three day trial was no longer required. She sought for Mr. M.D.’s pleadings to be struck and for the matter to proceed to an uncontested trial.

[10] Mr. M.D.’s position on the motion was that while the triggering event did occur, striking his pleadings would be both inappropriate in a case dealing with the best interests of a child and disproportionate to the transgression noted.

Endorsement of Justice March released October 29, 2018

[11] On October 29, 2018, Justice March released his endorsement with respect to the October 18, 2018 motion. In it, at paragraphs 8 and 9, Justice March set out Rule 1(8)(c) and 1(8.4) of the Family Law Rules.

[12] At paragraph 2, Justice March outlined the four costs awards previously made against Mr. M.D., those of July 10, 2017, December 4, 2017, February 28, 2017 and April 10, 2018, which totaled $3500, and stated at paragraph 4 of the endorsement that his order of July 4, 2018 “that Mr. M.D. must pay a reasonable, modest sum toward costs awarded against him to date was commensurate with what I suspect is indeed a limited ability to pay on his part”. This was notwithstanding that Mr. M.D. had not yet filed a Financial Statement or any evidence with respect to his financial circumstances, which Justice March notes in paragraph 3 of the endorsement.

[13] In paragraph 5 of his endorsement, Justice March stated:

He [Mr. M.D.] was forewarned as to what would occur if he did not pay $500.00 over the course of the three months he was given. It was not too much to ask. He had to come up with $166.66 per month between July 4, 2018 and October 1, 2018. He did not. (Emphasis is original).

[14] Justice March stated further at paragraph 6 of the endorsement;

The $500.00 amount I set was very much a test of his commitment to show respect for the Court. It was a modest threshold he had to meet in order to demonstrate a willingness to re-engage, and win back the right to participate in this matter. Sadly, he chose not to fulfil this obligation.

[15] At paragraph 11 of the endorsement, Justice March said:

Mr. M.D. did not pay the $500 in costs by the October 1, 2018 deadline. Worse still, he did not deliver to Mr. Allan N.’s Birth Certificate and Health Card, as ordered on July 4, 2018.

[16] Justice March noted at paragraph 10 that he had “absolutely no confidence that Mr. M.D. wishes to participate in a trial of this matter”, and again at paragraph 16 repeated that he did “not expect any meaningful participation from Mr. M.D.” in a trial, and he vacated the January 2 to 4, 2019 trial dates. At paragraph 18, he permitted Ms. T.R. to proceed to an uncontested trial.

Positions of the Parties on Appeal

[17] Mr. M.D. seeks to have the order of Justice March dated October 29, 2018 set aside and a trial of the issues reinstated. He also seeks an order that the case, if reinstated, be transferred to a different judge for determination of the issues on their merits. Mr. M.D. recognizes, however, that this latter request for relief may have been rendered moot by the establishment of the Unified Family Court for the City of Pembroke and County of Renfrew.

[18] Ms. T.R. seeks to have Mr. M.D.’s appeal dismissed. In the event that a trial of the issues is reinstated, she takes no position with respect to by whom it is heard.

[19] Both parties seek orders of costs for the appeal.

Analysis

[20] In support of his position, Mr. M.D. relies on the Divisional Court decision of Van v. Palombi, 2017 ONSC 2492. In that decision, Justice Linhares de Sousa stated at paragraph 30 of the Court’s Reasons for Judgment:

30. The legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows: (1) Is there a triggering event justifying the striking of pleadings?; (2) Is it appropriate to strike the pleadings in the circumstances of the case?; (3) Are there other remedies in lieu of striking pleadings that might suffice?

[21] Although Mr. M.D.’s counsel raised this issues in the court appearance of October 18, 2018, Justice March does not make specific reference in his endorsement to the test to be applied when exercising his discretion under Rule 1(8)(c) of the Family Law Rules. It is clear from his findings, however, that he was applying the facts to at least the first two branches of the test.

[22] With respect to the first question, Mr. M.D. admits that there was a triggering event to the striking of the pleadings, namely his non-payment of $500 pursuant to the order of Justice March of July 4, 2018. He does not agree, however, that this triggering event justified the striking of the pleadings. Indeed, he argued that it was a disproportionate response, particularly to an impecunious litigant. Ms. T.R.’s position is that the July 4, 2018 order could not be clearer, both with respect to what was required of Mr. M.D., and the consequence of not doing it.

[23] Though reference is also made to Mr. M.D.’s non-compliance with the provision of Justice March’s order requiring him to produce N.’s birth certificate and OHIP card (not the first time it’s been ordered), there is no doubt that the non-payment of $500 was the triggering event to the striking of the pleadings. While the striking of pleadings on that basis may appear disproportionate or unjustified on its face, when considered in the context of the July 4, 2018 order, I find that it is not. Justice March was clearly familiar with the degree to which Mr. M.D. had participated in the proceedings prior to October 18, 2018. He was, in fact, on July 4, 2018 giving Mr. M.D. an opportunity to continue to participate by requiring him only to pay $500 of the $3500 in costs that had been ordered to that date, as was noted in his written endorsement. So while non-payment of $500 was the triggering event for the exercise of Justice March’s discretion to strike Mr. M.D.’s pleadings, it was the non-payment of $500 in the context of the costs that had been previously ordered, the adjournment of the July 2018 trial, and the fact that Mr. M.D. was made aware in the July order of what the consequence of non-payment would be. Under the circumstances which existed as of October 18, 2018, I find that it was a reasonable and justified exercise of discretion by Justice March to strike Mr. M.D.’s pleadings.

[24] With respect to the second question as to whether the striking of Mr. M.D.’s pleadings was appropriate in the circumstances of the case, I find that it was. The circumstances of this case are that it has been outstanding since August of 2016; it had 26 court appearances up to and including July 4, 2018, for 10 of which Mr. M.D. simply did not show (including trial). On many other occasions when Mr. M.D. did attend court, he was unprepared and unhelpful. Additionally, although pleading impecuniosity as his excuse for non-payment, Mr. M.D. did not provide any evidence to the court with respect to his income, employment status, reasons for not being employed, efforts to find employment or efforts to pay anything towards the required $500. Indeed, he did not provide any evidence to the court, period. To my knowledge, he has still not done so. He simply did not pay.

[25] Mr. M.D. also failed to comply with the orders of Justice Selkirk dated July 10, 2017 to provide Ms. T.R. a notarial copy of N.’s birth certificate and OHIP card and Justice March’s orders of April 10, 2018 and July 4, 2018 to provide her the actual certificate and card. In light of the circumstances of this case, it was appropriate exercise of Justice March’s discretion to strike Mr. M.D.’s pleadings.

[26] In regards to the third branch of the test, Justice Linhares de Sousa indicated at paragraph 35 of Van:

[35] The jurisprudence indicates that even in the event of a court finding a “triggering event”, justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all the circumstances of the case. Furthermore, the striking of pleadings and the denial of trial participation which follows as a result, should only be done in exceptional circumstances and where no other remedy would suffice. The third step of the test is the examination of other remedies that might be appropriate in lieu of striking pleadings, a step that the motion judge fails to mention.

[27] Justice Linhares de Sousa finds that rationale for a cautious approach to be justified, as “without that participation there is a risk that the court will not have all necessary and accurate information to reach a just result.” She additionally cites the Ontario Court of Appeal case of Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121, noting that pleadings should only be struck in “exceptional cases and where no other remedy would suffice.” At paragraph 43, Linhares De Sousa J. notes: “One must seriously consider whether the complete non-participation of the children’s father at the custody and access trial would be in the children’s best interests.”

[28] In Van, the Divisional Court found that the motion Judge “erred in principle in the application of the third stage of the test, particularly in not considering other possible remedies than the striking of the pleadings and total non-participation in the trial on the part of the Appellant”.

[29] While I find that Justice March did put his mind to the possibility of the total non-participation of Mr. M.D. in the trial, in that he opined that he had no confidence Mr. M.D. would participate, he did not appear to consider other possible remedies, as is required by the third branch of test in the exercise of his discretion. I this regard, I find that he erred in applying the third stage of the test.

[30] Given, moreover, that this case is about the review of an order that was originally made with the involvement of a child protection agency, and given that N. was in Mr. M.D.’s sole custody for a number of years leading up to the interim order of April 20, 2018, I am of the view that it is one that risks the court not having all of the necessary information to make a just determination in the best interests of the child if Mr. M.D. is not permitted to participate in the trial in any way.

[31] Like the Divisional Court in Van, I would allow the appeal in part. Mr. M.D.’s pleadings remain struck, and I make the following order:

1. The matter shall be reinstated to the earliest available trial list;
2. An expedited trial management conference shall be scheduled;
3. The Appellant is to receive Notice of the trial dates and the trial management conference date;
4. The Appellant shall be permitted to cross-examine the Respondent (Applicant)’s witnesses on the issues of custody and access;
5. The Appellant shall not be allowed to call any witnesses or introduce any documents save through his cross-examination of the Respondent (Applicant)’s witnesses;
6. The Appellant shall be permitted to make final oral or written submissions, as determined by the trial judge, at the end of the trial on the issues of custody and access; and,
7. The Appellant is prohibited from bringing any motions prior to trial without leave of the court.

[32] With respect to the second ground of relief sought by the Appellant, I agree that with the introduction of the Unified Family Court in this jurisdiction, it is moot. Were it not, however, I would not have made the order requested.

[33] Ms. T.R. was substantially successful on this appeal in that Mr. M.D.’s pleadings remain struck, and she is consequently entitled to an award of costs. If the parties cannot agree on an appropriate quantum within 15 days, counsel may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Engelking, J. Released: June 28, 2019