Bennett v. Blake, 2020 ONSC 4072

Superior Court of Justice - Ontario

NEWMARKET COURT FILE NO.: FC-18-55568-00 DATE: 2020-06-30

RE: Shantelle Bennett, Applicant AND: Ricky Blake, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Julie Amourgis, Counsel for the Applicant Ricky Blake, Self-Represented

HEARD: In Writing

RULING ON URGENT MOTION REQUEST

1The respondent ("the father") has brought a motion for leave to proceed with an urgent motion to change two final Orders dealing with child support and access to the parties' five-year old daughter in the custody of the applicant ("the mother"). The Orders were made by Kaufman J. on August 20, 2018 and Douglas J. on January 22, 2019. The father's motion was brought on June 15, 2020 before the June 29, 2020 Notice to the Profession and Family Law Litigants for the Central East Region dispensing with the requirement that a matter be considered pressing or urgent before relief may be granted ("the CER Notice").

2The mother opposes both the leave request and the relief sought, should leave be granted.

3The father's motion will be dismissed for three reasons.

4The first reason is that in light of the CER Notice the father is required to demonstrate that he engaged the mother in "genuine, broadly optioned and diligent settlement discussions" as observed by McGee J. in Clemente v. O'Brien.¹ In this regard McGee J. aligned the test for urgency and pressing importance under an earlier iteration of the CER Notice with the test for urgency prevailing after Rosen v. Rosen.² The father's affidavit does not disclose meaningful efforts to engage with the mother.

5Secondly, the father did not disclose that on April 17, 2019 McGee J. dismissed an earlier effort by the father to change child support and awarded the mother $1,000 in costs against the father enforceable as a support Order. The mother says that this Order was never appealed and that the costs have not been paid (although it is unclear whether they were being enforced by the Director as part of his general mandate to enforce the support Order of Douglas J.). This Order was made after the mother's lawyer wrote to the father to inform him that he needed to comply with the Family Law Rules ("the Rules") by starting a Motion to Change if he was seeking to change a final Order. It was suggested that the father seek legal advice.

6Thirdly, the father persisted in not following the Rules and started another motion by Form 14. On September 11, 2019 Charney J. permitted a minor correction of the January 22, 2019 Order of Douglas J. and cautioned the father that if he wanted "to change the order re access schedule or s.7 expenses he must bring a motion to change." (para. 2). The father has not brought a Motion to Change. He has brought the present motion pursuant to Form 14. This is the third time. The father says that he was intending on complying with the Rules but that the Christmas holidays and the March 15, 2020 closure of the court's two and a half months later interfered with his plans. No issued Motion to Change accompanied the father's material. The father had plenty of time to comply with the Rules and his explanation for his inaction is inadequate.

7Accordingly:

(a) The father's motion is dismissed;

(b) The father shall not be permitted to proceed with a Motion to Change or any other motion dealing with child support or access unless and until he first obtains leave of the court. As a condition of that leave he must provide to the court satisfactory evidence that he has paid or is paying the costs awarded to the mother by McGee J. and the costs awarded pursuant to this Order;

(c) The father shall pay to the mother her costs of this motion fixed in the all-inclusive amount of $2,000 such costs to be enforceable as a support Order.

8A Support Deduction Order shall issue.

9Two further points.

10The father referenced in his affidavit comments allegedly made by Douglas J. in court. Absent a transcript of the hearing of that matter, no consideration has been given to those allegations.

11It has also been suggested that the father get some legal advice. That would be prudent.

12This Order is operative and enforceable upon release of this endorsement without any need for a signed or entered, formal, typed Order. Approval is dispensed with. The mother shall submit a formal Order for signing and entry as soon as practicable and upon regular court operations resuming.

Footnotes

1. 12020 ONSC 3287 at para. 33.
2. 22005.