COURT FILE NO.: FS-13-77585-01
DATE: February 21, 2019
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Caterina Cannone-Haddad, Applicant
AND:
Hani Haddad, Respondent
BEFORE: Justice G.D. Lemon
COUNSEL: Mr. Ryan Gillissie, Counsel for the Applicant
Mr. Frank A. Mendicino, Counsel for the Respondent.
HEARD: February 1, 2019
ENDORSEMENT
The Issue
[1] Ms. Cannone-Haddad brings a motion for an order to strike Mr. Haddad’s pleadings, or, in the alternative, an order for security for costs against him.
Background
[2] The parties were married on June 16, 1990 and separated in May of 2012. They were divorced in June of 2014.
[3] They have two children, now aged 21 and 17.
[4] By consent order dated May 29, 2014, Mr. Haddad was ordered to pay child support based on an imputed income of $80,000.00.
[5] Mr. Haddad has now brought a motion to change that support for a variety of reasons.
[6] First, he says that he has never had an income as high as $80,000.00 but simply wanted to end the Court proceedings in 2014.
[7] Second, Mr. Haddad says that he is employed as an auto body repair technician. He says that the nature of that employment requires him to move from body shop to body shop depending on the availability of work.
[8] Finally, he sets out that he has sustained a number of injuries which have resulted, from time to time, in his being unemployed and surviving on either Employment Insurance Benefits or Ontario Works.
[9] Ms. Cannone-Haddad does not believe him. She says that Mr. Haddad has never paid proper support on time or in full. She says that he currently owes nearly $50,000 in support arrears. She also points out that Mr. Haddad has failed to pay at least one costs order.
[10] In particular for this motion, Ms. Cannone-Haddad submits that Mr. Haddad has failed to provide disclosure pursuant to orders dated February 14, 2017, May 18, 2017, February 8, 2018 and August 17, 2018. Specifically, she says that he has failed to produce:
(a) His employment history from December, 2014, supported with his records of employment;
(b) A history of any injuries or health issues from December, 2014, with supporting medical records;
(c) A history of job searches while unemployed or an explanation why he has not engaged in a job search;
(d) Any documents with respect to his alleged loans from his mother;
(e) Any receipts for Section 7 expenses claimed for the children;
(f) A history of rental accommodations with proof of payment;
(g) Bank statements from August 1, 2017 to current; and
(h) Copies of articles of incorporation or originating registered documents for 369 Dayna and Nick.
[11] While the affidavit material is detailed, Ms. Cannone-Haddad ultimately submits that this matter has been proceeding for nearly three years and Mr. Haddad has been slow to provide only limited disclosure and has failed to provide key pieces of evidence for the Court to make any determination of his income for support purposes.
Analysis
[12] Effectively, Ms. Cannone-Haddad seeks summary judgment of Mr. Haddad’s motion to change. If I strike his pleadings, there will be no proceeding to go forward. I should be slow to do that unless there are no triable issues.
[13] From my review of the materials, both parties have ample evidence to move this matter forward.
[14] To summarize their positions, Ms. Cannone-Haddad submits that on the evidence put forward by Mr. Haddad, he will be unsuccessful. Mr. Haddad, in return, says that he has produced everything that he has. It is now time for a Judge to make that determination.
[15] It is significant to note, that in May, 2017, Justice Woolcombe endorsed “the parties agree that all disclosure has been made by the respondent.”
[16] Within his affidavits, Mr. Haddad has set out most, if not all, of his employment history since December, 2014.
[17] Mr. Haddad submits that he has provided all of the medical evidence upon which he intends to rely. If there is no more, then Ms. Cannone-Haddad knows the case that she has to meet.
[18] In his responding affidavit to this motion, Mr. Haddad has answered the question relating to his job searches. He confirms that he has no documents with respect to loans from his mother. He says that he has provided all of the Section 7 expense receipts and is not relying on any other than as produced. The articles of incorporation that are requested are Ms. Cannone-Haddad’s corporation.
[19] I am satisfied that, on these materials, Mr. Haddad has produced sufficiently that he can proceed with his application. If he has not produced important and relevant documents by now, the trial judge can draw an adverse inference against him. Any chase for irrelevant or unimportant documents or answers is a waste of time and money. Ms. Cannone-Haddad’s request is dismissed.
Security for Costs
[20] In the alternative, Ms. Cannone-Haddad seeks an order for security for costs against Mr. Haddad. The relevant parts of Subrule 24(13) to (17) of the Family Law Rules read as follows:
(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:
A party ordinarily resides outside Ontario.
A party has an order against the other party for costs that remains unpaid, in the same case or another case.
A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
A statute entitles the party to security for costs.
(14) The judge shall determine the amount of the security, its form and the method of giving it.
(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.
(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies.
[21] In Izyuk v. Bilousov, 2015 CarswellOnt 8634, Justice Pazaratz set out a summary of the law with respect to this rule. There, he noted that the purpose of such an order is to protect a party from nuisance or irresponsible litigation conducted without regard to the merits of the case or the likely costs. It is not intended as a roadblock for a person who has a genuine claim. The Court has a wide discretion with respect to making such an order.
[22] Despite Ms. Cannone-Haddad’s doubts about Mr. Haddad, I cannot say that this case is a waste of time. I cannot tell one way or the other on this material.
[23] It is likely that the Family Responsibility Office will enforce the present outstanding order and could enforce any future costs order if Mr. Haddad is unsuccessful.
[24] In my view, it would be extraordinary to order security for costs against a party who is coming to Court for relief as a result of an inability to pay outstanding support orders. If there is such a case, this is not it.
Result
[25] In the circumstances, Ms. Cannone-Haddad’s motion is dismissed.
[26] I reserved on this case and was uncertain of the result of the motion but I was also concerned that this matter had been lingering.
[27] Although Ms. Cannone-Haddad complained of Mr. Haddad’s response to motions, it appears that Ms. Cannone-Haddad had also not complied with timelines in these proceedings. I was advised that, if the matter were to proceed, the next step was a trial management conference to be heard in November. Depending on my decision, if the matter were to proceed, I thought it best to move the matter along.
[28] At my request, the trial office advised that trial time was available the week of September 23, 2019; both counsel confirmed that they were available at that time. In order to accept that trial date, however, counsel and I needed to confirm that the matter could be dealt with in less than four days. Based on what I had read, this matter could certainly be dealt with in less than four days. With a little cooperation and imagination by counsel, it could be dealt with in far less time. I therefore encouraged both counsel to put their minds to how the matter might be streamlined if Ms. Cannone-Haddad were not successful on her motion.
[29] I appreciate how that might appear to the parties particularly since Ms. Cannone-Haddad has now been unsuccessful. However, I decided to run the risk of that appearance to move the matter along while all parties were available. I think that I made that clear in court.
[30] On that basis, the parties agreed as follows:
- In the event this matter is to proceed to trial, the following stipulations apply:
a. Any orders the Court makes regarding the applicant’s motion to strike and for security for costs;
b. The respondent, moving party, shall 21 days in advance of the first trial date, serve and file the following:
i. The respondent’s affidavit evidence in chief;
ii. The respondent’s book of documents;
iii. The respondent’s trial record;
iv. A list of witnesses and a summary of their evidence and willsay; and
v. The respondent’s sworn financial statement with any up-to-date attachments not previously provided;
c. The applicant shall 14 days in advance of the first trial date, serve and file the following:
i. The applicant’s affidavit evidence in chief;
ii. The applicant’s book of documents;
iii. Any additions to the respondent’s trial record;
iv. A list of any witnesses other than the applicant; and
v. The applicant’s sworn financial statement with any up-to-date attachments not previously provided;
d. The parties shall exchange books of authorities 7 days prior to the first trial date and may file and serve up to 3 days prior to the first trial date.
e. The parties shall exchange requests to admit and for further information 45 days in advance of the first trial date and answer the requests 30 days prior to the first trial date.
f. Medical and business records that are admitted do not require the record keeper or author to be called; all medical and business records produced to date are authentic and do require the record keeper to be called.
[31] I presume that the last line in (f) has an error and that the parties meant “do not require”.
[32] This is a good start. However, I encourage counsel to continue to narrow the issues and the list of witnesses.
[33] By this endorsement, I also order that counsel shall arrange a trial management conference call with me before the end of May, 2019, to confirm that this matter will be ready for trial on September 23, 2019.
Costs
[34] If costs cannot be agreed upon, Mr. Haddad shall provide his costs submissions within the next 15 days. Ms. Cannone-Haddad shall provide her reply within 15 days thereafter. No reply submissions shall be filed unless I request them.
[35] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
[36] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9. I shall make sure that they are filed when I have finished with them.
Lemon J.
Date: February 21, 2019
COURT FILE NO.: FS-13-77585-01
DATE: February 21, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Caterina Cannone-Haddad
Applicant
– and –
Hani Haddad
Respondent
ENDORSEMENT
Lemon, J
Released: February 21, 2019