Court File and Parties

COURT FILE NO.: D15148/16-01

DATE: 2019/07/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HOLLY LYNN PEARCE, Applicant

AND:

ANTHONY SHYAM KISSOON, Respondent

BEFORE: D.A. Broad

COUNSEL: William H. Abbott, for the Applicant

Robert Sager, for the Respondent

HEARD: July 19, 2019

ENDORSEMENT

[1] The parties began cohabiting in 2008, married in 2010 and separated in September 2014. There is one child of the relationship born June 10, 2012 (currently 6 years of age) (the “child”).

[2] By consent order of Justice Thompson dated March 10, 2017 the applicant has sole custody of the child. By order of Justice Harper dated June 30, 2017 the respondent was found in breach of the order of Justice Thompson dated April 12, 2017 by failing to provide required financial disclosure and to pay the applicant’s costs of an uncontested trial and his pleadings were struck.

[3] The applicant proceeded with an uncontested trial shortly thereafter and obtained a final order made by me dated July 31, 2017 (the “Final Order”) which provided, inter alia, that the respondent pay child support of $709 per month based on an income of $78,000 and $265.07 per month for special and extraordinary expenses, that he provide full financial disclosure every June 1, and he pay arrears of child support in the amount of $3,557.95 by September 1, 2017 and pay costs of $1,500.

[4] The respondent brought a motion to change the Final Order on April 12, 2019. In his motion to change the applicant seeks access to the child on a graduated basis, culminating after four months to access every second weekend from 9 AM on Saturday to 9 PM on Sunday, termination of his obligation to pay child support effective March 10, 2017 and fixing the arrears of child support at zero.

[5] The applicant has brought a motion for a finding that the respondent is in breach of the Final Order, staying the respondent’s motion to change, and prohibiting the respondent from taking any steps in the proceeding until he remedies his breaches of the Final Order and obtains leave of the court.

[6] The applicant deposed in her supporting affidavit, inter alia, that the respondent remains in breach of a Final Order including payment of child support and special and extraordinary expenses, has not produced his final financial disclosure as required, failed to pay the arrears of child support in the sum of $3,557.85 and costs of $1,500. In addition, she says that the respondent remains in breach of the order of April 12, 2017 requiring him to pay costs of $500, and the order of Justice Harper dated June 30, 2017 for costs in the sum of $2,500.

[7] The applicant deposed that, in addition to his various criminal convictions, the respondent is currently charged with eighteen counts of possession of a weapon and three counts of failure to comply, with the last known court attendance listed as March 28, 2019. No disclosure has been provided by the respondent with respect to the disposition on March 28, 2019 nor of the current status of the pending criminal charges notwithstanding written requests by counsel for the applicant.

[8] The respondent opposes the applicant’s motion. He deposed in his affidavit, inter alia, that he has not worked since early 2017 had an addiction issue and was not employed at the time of the hearing that led to the Final Order and was incarcerated at that time. He stated that he has not had the ability to pay the court ordered costs because he has not been employed. He undertakes to pay the ordered costs, however he has not proposed a timetable for payment.

[9] The respondent acknowledged that he is in breach of the order to pay child support. Since he has been incarcerated for a significant period of time and has not been employed he has no ability to pay child support. The respondent says that he has received counselling with respect to his addiction issues has taken other steps to improve himself, including completing the PARS Program, the Triple P Program and treatment at the Centre for Addiction and Mental Health. He says that he has been drug-free and sober since December, 2017.

[10] Mr. Abbott for the applicant summarizes that the respondent owes outstanding costs awards totalling $4,500, arrears of child support to the date of the Final Order in the sum of $3,557.85 and arrears of child support from August 1 to December 31, 2017 in the sum of $4,870.35 for a total of $12,928.20 to December 31, 2017 (mistakenly stated by Mr. Abbott to be a total of $13,928.20). He points out that, contrary to the respondent’s assertion that he has not worked since early 2017, as disclosed in Notice of Assessment for 2017, his line 150 income for that year was $63,305. Notwithstanding his evident ability to pay child support in 2017 the respondent paid no child support in that year.

[11] The applicant’s position is that the court should exercise its discretion to stay the respondent’s motion to change pending payment of the sum of $12,928.20. He did not take the position that the respondent be required to pay all of the arrears owing under the Final Order before being permitted to proceed with his motion to change but only the arrears owing to the end of 2017 when he had reported income of in excess of $63,000.

[12] The respondent acknowledges that his motion to change may be properly stayed pending payment of the outstanding costs orders in the sum of $4,500, but not pending payment of any of the arrears of child support pursuant to the Final Order, as that is the order which he seeks to change. He also takes the position that, if a stay is to be imposed, it should only relate to the financial aspects of the Final Order and not to his claim that he be granted access to the child as that claim relates to the child’s best interests.

[13] As indicated, the respondent does not dispute the fact that the court has a broad discretion to impose sanctions on a party for failure to obey an order. Rule 1(8) of the Family Law Rules provides that the court may deal with a failure by a party to obey an order in a case or a related case by making any order it considers necessary for a just determination of the matter including (c) an order striking out a notice of motion or any other document filed by a party,(e) an order that the party is not entitled to a further order from the court unless the court orders otherwise and (f) an order postponing any step in the case.

[14] The Court of Appeal confirmed in the case of Burley v. Burley, 2009 ONCA 2 at para. 17 that “it is well recognized that the court has discretion not to entertain an application by a pay or spouse who is in continuous default” citing Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346 (S.C.C.)

[15] Spence, J. in the case of Ferguson v. Charlton, ONCJ 1 (O.C.J.) laid out a three-step process at para. 64 to be utilized when considering the noncompliance of a party seeking to obtain relief from the court, as follows:

(a) the court must ask whether there is a triggering event that would allow it to consider the wording of sub rule 1(8);

(b) if the triggering event exists, that the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8); and

(c) in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy under subrule 1(8).

[16] In my view, the onus is on the respondent as the non-complying party and the party seeking relief from the court to demonstrate why it would be appropriate for the Court to exercise its discretion in his favour.

[17] As noted by Rogers, J. in the case of Sgro-DeGiosaffatte v. DiGiosafatte, [2003] O.J. No. 5011 (S.C.J.) at para. 4 the argument about a stay is always difficult when a recipient asks for a stay because of non-payment of the order sought to be changed. This explains the concession by the applicant in this case that arrears of support subsequent to December 31, 2017 should not be considered on the question of a stay. However, it is appropriate to have regard to the apparent merits of the motion to change insofar as it seeks relief against arrears of support and to examine whether an adequate explanation has been given for nonpayment. In my view the respondent has not provided a satisfactory explanation for the apparent discrepancy between his assertion that he has not worked since early 2017 and his reported line 150 income in that year of in excess of $63,000. In the circumstances, it is not appropriate to exercise the court’s discretion in favour of the respondent in relation to his default in paying any child support in 2017 when it is evident that he had the ability to do so.

[18] With respect to the question of whether the stay should be applied to the parenting aspects of respondent’s Motion to Change it is clear that, on the authorities, there is a distinction between financial issues and parenting issues on the question of whether to strike the pleadings of a party who is not in compliance with a court order. In the case of D. (D.) v. D. (H.), 2015 ONCA 409 the Court of Appeal stated at para. 1:

It is trite law that custody is to be decided based only on the best interests of the children. In King v. Mongrain 2009 ONCA 486, 66 R.F.L. (6th) 267 (Ont. C.A.), this court emphasized that the utmost caution must be used before striking a party's pleading when custody and access are in issue. It explained that a full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children.

[19] The issue in the case at bar is whether the principle in King v. Mongrain and confirmed in D. (D.) v. D. (H.), applies in the context of a motion to change a final order in which custody was finally determined and where the relief sought on the motion of the non-defaulting party is a stay of the defaulting party’s motion to change and not to strike out that party’s pleadings.

[20] In my view, from a functional standpoint there is little difference between the striking out, and the imposition of a stay, of the defaulting party’s motion to change. The effect is the same – the defaulting party is prevented from pursuing an order granting the relief sought on the motion to change until the default is cured.

[21] However there is, in my view, a difference in principle between striking out a defaulting party’s pleadings in a case where custody and access are at issue and there has been no final order made on those issues on the one hand and a motion to change a final order respecting custody and access brought by a defaulting party on the other.

[22] It is noted that King v. Mongrain was not concerned with a motion to change a final order for custody and access. The case involved the determination of custody and access in the first instance and no final order on those issue had been made previously. Gillese, J.A., writing for the panel, explained the rationale for proceeding cautiously before striking pleadings where childrens’ interest are at issue at paragraph 31 as follows:

…courts should use the utmost caution in striking pleadings where children's interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga (2005), 2005 CanLII 39324 (ON CA), 203 O.A.C. 388 (Ont. C.A.). The reason for that admonition is simple - in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. Thus, while this court upheld the first instance decision to strike the pleadings of the husband in Faga, two things must be noted. First, the pleadings were largely about financial matters, although there were limited parts on custody and access. Second, and very significantly, as the court noted at para. 7 of its reasons, the Office of the Children's Lawyer would represent the children's interests in the proceedings. Accordingly, the court was assured that the information necessary to make custody and access decisions in the children's best interests would be before it.

[23] In Purcaru v. Purcaru, 2010 ONCA 92 (C.A.) the Court, following King v. Mongrain accepted the argument that pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice and noted that special care must be taken in family law cases where the interests of children are at issue. Similar to King v. Mongrain, Purcaru did not involve a motion to change but rather the judge at first instance struck the defaulting party’s pleadings preventing him from participating in the trial leading to the final order. In the particular circumstances of that that case the Court of Appeal upheld the exercise of the trial judge’s exercise of discretion to strike pleadings.

[24] D. (D.) v. D. (H.) did involve a motion to change a final order. However, in contrast to the case at bar, the motion to change was not brought by the party in default of court orders, but rather she was simply responding to the opposing party’s motion to change, and sought only to maintain the final order for custody and access.

[25] On the return of the motion to change the responding party and her counsel were prohibited from participating in the motion in any way by reason of her having defaulted on previous court orders. She was denied the right to file any materials and her counsel was prevented from cross-examining the moving party and his witnesses and from making submissions (see para. 41). The court granted the motion to vary the final order, which had been made on consent, reversing the custodial regime and limiting the responding party’s access to the child.

[26] At paras. 78-81 Gillese, J.A., again writing for the panel, stated as follows:

In King v. Mongrain, this court explains 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. At paras. 30-31, this court recognizes the power of family courts to strike pleadings but makes clear that it is preferable that such a sanction be avoided when the matter to be decided is custody or access:

[C]ourts should use the utmost caution in striking pleadings where children's interests are involved and it is generally preferable to avoid using that sanction.... The reason for that admonition is simple — in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties.

[Emphasis added.]

As in King v. Mongrain, the motion judge in the present case decided the custody issue on an inadequate evidentiary basis: the evidence was solely that adduced by the respondent. And, much of that evidence was about the tortured procedural history of this case, the children's aid societies' failures, and the police's failure to enforce the warrant for H.D.'s arrest and return the children to Ontario. Furthermore, it will be recalled, at the hearing H.D.'s counsel was not allowed to even make submissions on whether D.D. should have custody, let alone cross-examine D.D. or lead evidence.

Just as in King v. Mongrain, the one-sided presentation of evidence did not provide an adequate basis on which the motion judge, acting in accordance with the relevant statutory provisions, could determine that a final custody order in the father's favour was in the children's best interests.

This is not to suggest that the family courts may never strike pleadings or that, if struck, custody and access cannot be decided. Haunert-Faga v. Faga (2005), 2005 CanLII 39324 (ON CA), 203 O.A.C. 388 (Ont. C.A.), is an example of a case in which this court upheld a decision to strike pleadings in a family law case where custody was an issue. However, in that case, the Office of the Children's Lawyer was representing the children's interests in the proceedings. In the present case, no one represented the children.

[27] Different considerations apply, in my view however, where it is the party in default who seeks to change a final order in which the best interests of the child respecting custody and access have already been determined. The admonition against striking pleadings (or staying proceedings) may not carry the same force where it is the defaulting party who seeks to invoke the jurisdiction of the court to vary an existing final order respecting custody and access and the non-defaulting party simply seeks to have the final order upheld. Subrules 2(2) and (3) of the Family Law Rules directs Courts to deal with cases justly, including to ensure that the procedure is fair to all parties.

[28] This is not to say that it is appropriate in all cases to stay a motion to change a final order for custody and access brought by a party in default of one or more court orders. The Court of Appeal has confirmed that the court has a discretion under subrule 1(8) to craft an appropriate remedy to address a failure of a party to obey a court order in the particular circumstances of each case.

[29] For example, in the case of Malcolm v. Richards, 2012 ONSC 1518 (S.C.J.) [not cited by counsel in this case] Bielby, J., sitting on appeal from a decision of the Ontario Court of Justice in which the moving party’s motion to change, including for increased access, was struck out and dismissed for failure to comply with disclosure orders, held that he was bound by King v. Mongrain. He noted that the Court of Appeal made it clear that the courts should use the utmost caution in striking pleadings where children's interests are involved and returned the matter to the Ontario Court of Justice on the issue of the variation of access.

[30] The underlying facts related to the question of access were not set out in Justice Bielby’s decision. He noted that the judge below, in his brief endorsement, did not address the access issue.

[31] In the present case Final Order of Justice Thompson dated March 10, 2017 granting custody of the child to the applicant and making no provision for access to the respondent was made on consent. Moreover the respondent did not appeal Justice Harper’s subsequent order striking his pleadings. The evidence indicates that the respondent has not sought to exercise access since the making of the consent order for custody to the applicant. The respondent, in his affidavit, explains his desire to have a relationship with his son and to be a positive person in his life, however no concrete evidence is offered as to why access to the respondent would be in the child’s best interests.

[32] As noted, the applicant does not seek to strike out the respondent’s motion to change, but rather that it be stayed pending compliance with the outstanding orders for costs and payment of arrears of child support to December 31, 2017.

[33] In my view, to permit the respondent to proceed with his motion to change in the face of his defaults in this respect would not be to deal with the case justly. To do so would put the applicant in the unfair position of having to incur further substantial expense in defending the existing final order for custody made on consent while the respondent remains in substantial default of costs orders and child support, with no assurance that, if successful in doing so, any part of her costs would be recoverable from the respondent.

[34] The applicant’s motion is therefore allowed and the respondent’s motion to change is stayed pending payment of the sum of $12,928.20, representing outstanding costs of $4,500 and arrears of child support to December 31, 2017 in the sum of $8,428.20 and obtaining leave of the court.

[35] The parties are strongly urged to agree upon costs. If they are unable to do so, the applicant may make written submissions as to costs within 14 days of the release of this Endorsement. The respondent has 10 days after receipt of applicant’s submissions to respond. The applicant shall have no right of reply without leave. Each party’s written submissions shall not exceed two double-spaced pages, exclusive of Costs Outlines, Offers to Settle, and authorities. All submissions shall be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad

Date: July 22, 2019