Superior Court of Justice - Ontario

COURT FILE NO.: FC-09-2160-3 DATE: 2020/02/05

RE: O’Neill Armstrong Applicant -and- Ann Marie Elizabeth Vanneste Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Thomas R. Hunter for the Applicant Claudia Bordes for the Respondent

HEARD: January 16, 2020

ENDORSEMENT

1. The Respondent has brought a motion seeking to strike the Applicant’s motion to change if outstanding costs awarded against him in the Order of Justice Ryan Bell, dated December 8, 2017, are not paid within 30 days. The Respondent also seeks orders that the Applicant not be permitted to bring another motion to change until he has paid the costs in full and that the Applicant not be permitted to bring this matter back to court without posting security for costs of at least $60,000.

2. For the reasons set out below, I dismiss the Respondent’s motion and make orders directing how this matter shall proceed.

Background

3. The Applicant filed his motion to change on July 4, 2019. The Respondent has filed a response to the motion to change but the parties have not yet had a case conference on the substantive issues in the motion to change (see Rule 14(4)). The Respondent obtained leave to bring this motion before the parties had a case conference.

4. The Applicant seeks to change the access and timesharing provisions respecting the parties’ child, now 11 years old. The Applicant asks the court to make several orders changing the final Order of Justice Linhares de Sousa, dated September 27th, 2013 (“the 2013 Order”), as set out in a schedule. The schedule includes terms relating to parenting, child support, life insurance, and conflict resolution. The proposed terms mirror terms that parties often enter into as part of a comprehensive separation agreement and include terms that the Court arguably does not have jurisdiction to order, such as requiring the parties to resolve disputes through binding arbitration, and a future termination of child support clause. Despite including a request to change child support, the Applicant has not filed a financial statement.

5. Before this motion to change, the Applicant brought an initial motion to change that was commenced in May of 2016. Justice Ryan Bell dismissed the Applicant’s first motion to change on October 11, 2017, finding that there had not been a material change in circumstances since the 2013 Order. On December 8, 2017, Justice Ryan Bell ordered the Applicant to pay costs to the Respondent fixed at $20,201.

6. In March of 2018, the Applicant filed a consumer protection proposal under the Bankruptcy and Insolvency Act that includes the costs owed to the Respondent. The Applicant is making monthly payments under this consumer proposal.

Failure to Comply with a Court Order

7. I do not accept the Respondent‘s position that the Applicant has failed to comply with a court order that justifies striking his pleadings under Rule 1(8)[^1].

8. I do not find that the Applicant’s failure to pay the order for costs amounts to a failure to comply with the order, and in particular, amounts to wilful non-compliance with that order. The order for costs is now subject to the Applicant’s proposal under the Bankruptcy and Insolvency Act[^2]. The Respondent received notice of the proposal as a creditor of the Applicant. The Respondent has rights as a creditor as set out under that legislation. There is no evidence before me that the Applicant is not making the payments as required under his proposal. Even if he had failed to make such payments, the Bankruptcy and Insolvency Act provides for the consequences of such non-payment.

9. The Respondent also argues that the Applicant has failed to comply with other orders. She points to the Applicant’s failure to provide a copy of his work schedule as required under the Order of Justice Smith, dated July 25, 2016. A copy of that order was not provided in the evidence before me and so I am unable to find that there has been a breach. Justice Smith’s order was granted prior to Justice Ryan Bell’s order of October 11, 2017. I question whether it is an interim order that is no longer in force.

10. I have no evidence before me that the Applicant has failed to comply with the child support order. The 2013 Order does not specify an amount of monthly child support payable by the Applicant. It appears that the Family Responsibility Office is enforcing a court order or agreement that specifies a monthly child support amount, but a copy of this order is not before me, nor is it referenced in the Motion to Change documents.

Security for Costs

11. In the alternative, the Respondent argues that the Applicant should be required to pay security for costs of $60,000.

12. The Court has the discretion to order a party to pay security for costs under Rule 24 (13), based on one or more of several factors. These factors include that there is already an order between the parties for costs to be paid that remains unpaid and that 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.

13. Security for costs is not, however, intended to act as a roadblock to a person who has a genuine claim. In most instances, the merits of a case should not be determined by a party’s inability to post security for costs. Izyuk v Bilousov, 2015 ONSC 3684, Daher v Khanafer, 2016 ONSC 1387

14. In this matter, I place little weight on the factor that the December 8, 2017 order for costs against the Applicant remains unpaid, for the same reasons as set out above given the order for costs is now part of the Applicant’s proposal under the Bankruptcy and Insolvency Act.

15. I appreciate that the Respondent is frustrated that the Applicant has brought another motion to change after being unsuccessful in his previous efforts to change the 2013 Order and that he has not paid the costs ordered against him. Her view is that the Applicant has escaped any consequences for his failure to be successful in the previous motion to change. It appears that the Applicant’s main motivation for bringing this motion is to impose these consequences on him by preventing him from litigating his parenting concerns without paying the cost award, despite his proposal in bankruptcy. It concerns me that the amount that the Respondent seeks as security for costs ($60,000) would act as a bar to the Applicant proceeding with his claims.

16. I do not accept the Respondent’s assertion that the Applicant has not experienced any consequences as a result of the order for him to pay costs. The Applicant has filed a proposal under the Bankruptcy and Insolvency Act, which has several consequences, including to his credit rating. The Respondent may not appreciate the provisions that are in place under the Bankruptcy and Insolvency Act for debtors to be relieved of their debts, but this is the legislative scheme that applies, and she cannot ignore its operation. I also point out that the right to bring claims before the Court is not limited to parties who have a financial ability to pay a cost award.

17. The Respondent’s main argument, therefore, is that there is such good reason to believe that the Applicant’s case is a waste of time or a nuisance that he should not be allowed to proceed without paying security for costs. In this respect, she argues that the court may impose a lower amount for security for costs that would not automatically act as a financial bar to the Applicant’s claims.

18. At the motion, there was a significant argument on the issue of whether or not there has been a material change in circumstances since Justice Ryan Bell’s order. The Applicant argued, at the motion, that he does not have to show a material change in circumstances because he is not seeking to change the 2013 Order but seeking to add provisions to it to fill obvious gaps.

19. I reject this argument. The 2013 Order is a comprehensive order that finally resolved the parenting issues between the parties, based on the circumstances at that time. Accordingly, if the Applicant wishes to change these parenting provisions, he will need to establish that there has been a material change in the conditions, means, needs, or other circumstances of the child occurring since the making of the last variation order made in respect of that order[^3], being Justice Ryan Bell’s October 11, 2017 order. A material change in circumstances is one that:

20. Amounts to a change in the conditions, means, needs, or other circumstances of the child and/or the ability of the parents to meet the needs of the child;

21. Materially affects the child; and

22. Was either not foreseen or could not have been reasonably contemplated at the time of the last variation order.

23. I do not find, however, that there is good reason to believe that the Applicant’s case is a waste of time or a nuisance such that he should not be allowed to proceed without paying security for costs. While I appreciate that much of the Applicant’s evidence pertains to matters that took place before Justice Ryan Bell’s decision on October 11, 2017, and in that regard appears to be an attempt to relitigate the issues previously determined by her, both parties have also filed extensive evidence before the court that confirms there have been several incidents of conflict between them since October 11, 2017 Order. This includes voluminous evidence regarding an incident at the child’s football game on November 3, 2019. That incident appears to have taken place in the presence of the child. Both parties saw fit to file numerous affidavits respecting this incident, which included various allegations regarding the severity of the incident and that the other party was to blame. The Applicant’s motion to change purports to seek changes to parenting that would minimize the conflict between them. The Respondent’s response, aside from her argument that there has been no material change, appears to be that no changes are needed (or would be effective) because the cause of the problems is the Applicant.

24. There is ample evidence before me to support that the Applicant’s motion to change in based on genuine issues relating to the best interests of the child. I do not find there is good reason to believe that the Applicant’s case is a waste of time or a nuisance. This finding does not mean that the Applicant will be successful in his claims, just that his claims raise genuine issues which should not be barred from being considered on their merits by an order for security for costs.

25. I also find that an order for security for costs, in the amount proposed by the Respondent or a lower amount of, for example, $5,000, would effectively act as a roadblock to the Applicant’s claims. It is problematic that the Applicant has not filed a financial statement, but this finding is supported by the Applicant’s consumer proposal, which was filed.

Next Steps

23. The Family Law Rules must be applied to promote the primary objective of the rules, which is to enable the court to deal with cases justly. Rule 2 includes the following:

“(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

24. The court has several powers, including under Rules 1 and 2, to make orders that promote the primary objective.

25. It concerns me that a significant amount of time and resources have been spent on this motion, rather than on moving the matter forward towards resolution on its merit. Both parties have filed several affidavits for this motion, from themselves and third parties. The Applicant has sworn four affidavits. The Respondent has sworn three affidavits. The parties have, in total, provided six additional sworn affidavits from third parties. These affidavits include significant evidence that would allow the court to adjudicate the issues on their merits, on a final basis. The amount of time and resources spent on the issues in this motion could have otherwise gone a long way to get this matter to a final adjudication on its merit. How this matter has proceeded to date is not proportional to the complexity of the issues and has not saved time and expense.

26. At the same time, the Applicant’s pleadings are poorly worded and deficient. This includes that the Applicant has not filed a financial statement despite including a request for an order to change child support and is seeking orders that appear to be beyond this court’s jurisdiction.

27. A case conference is needed to identify the issues, narrow them, and direct how the matter shall move forward following the primary directive. The parties shall schedule a case conference before me, through the family counter, for one hour on a date when both parties are available. The parties shall schedule this case conference on a date that allows for the timelines set out below.

28. On or before 30 days from today’s date, the Applicant shall serve and file his amended pleadings to set out the following:

    1. What orders he is asking the court to grant, the jurisdiction of the court to make the orders that he seeks, and a concise statement of the material facts on which he relies in support of his claim, but not the evidence by which those facts are to be proved.
    2. The material facts on which he relies shall include a concise statement of what material change in circumstances he states has taken place since Justice Ryan Bell’s October 11, 2017 order (being the last variation order).
    3. Copies of the order(s) that he seeks to change (the 2013 Order) and the last variation order (the October 11, 2017 order).
    4. If the Applicant is seeking to change the amount of monthly child support, a copy of the final Order that sets out the monthly child support that he is seeking to change, along with his sworn financial statement, with all supporting documents as required under s.21 of the Child Support Guidelines and Rule 13 of the Family Law Rules.
    5. If the Applicant fails to file his amended pleadings as directed above, his pleadings shall be struck.

29. The Respondent shall have 30 days from the receipt of the Applicant’s amended pleadings to serve and file her amended response, if necessary.

30. At least 20 days in advance of the case conference, counsel for the parties shall engage in direct substantive discussions with each other to identify, concisely, the issues in dispute.

31. At least 14 days before the case conference, the Applicant shall serve the Respondent with his proposal for how this matter shall proceed to final adjudication taking into consideration the powers of the court under Rules 1 and 2, including his proposed timetable for the exchange of affidavits and a final hearing date to determine these issues. The Respondent shall serve her responding proposal dealing with the same issues on the Applicant at least seven days before the case conference. Both parties shall include their respective proposals in their case conference briefs filed with the court. The parties should expect that the court will set a timetable and procedure for the final adjudication of this matter at the case conference.

32. At least seven days in advance of the case conference, both parties shall serve the other party with their formal offer(s) to settle all issues, including offers to settle issues separately, if applicable.

33. At the case conference, each party shall be ready to have settlement discussions to attempt to narrow the issues.

Costs

34. If the parties are unable to agree on costs of this motion, the Respondent may file submissions concerning costs on or before February 14, 2020. The Applicant may file submissions concerning costs on or before February 21, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Dated: February 5, 2020

Justice P MacEachern

COURT FILE NO.: FC-09-2160-3 DATE: 2020/02/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: O’Neill Armstrong Applicant -and- Ann Marie Elizabeth Vanneste Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Thomas R. Hunter for the Applicant Claudia Bordes for the Respondent

HEARD: January 16, 2020

ENDORSEMENT

Justice Pam MacEachern

Released: February 5, 2020

[^1]: Family Law Rules, O.Reg. 114/99 as am. [^2]: Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, as am. [^3]: Divorce Act, s.17 (5); Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27