Margaret Melville v. Jason Melville

COURT FILE NO.: FC-20-334-00

DATE: 20210616

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Margaret Melville Applicant

– and –

Jason Melville Respondent

Ronald Zaldin, Counsel for the Applicant

Self Represented

HEARD via videoconference: June 3, 2021

RULING ON MOTION

Jain J.

Introduction

[1] This matter came before me for a motion brought by the applicant pursuant to r. 1(8) of the Family Law Rules (the Rules).[^1] At the outset of the hearing, I addressed both parties and advised them that as set out in Krause J.’s endorsement of April 22, 2021, the applicant’s motion (originally returnable on April 22, 2021) is not appropriate for a one (1) hour regular motion. The applicant’s motion requests numerous orders (more than thirteen separate issues) including: custody (now decision making responsibility) and other detailed parenting orders; spousal support; child support; disclosure; striking the respondent’s pleadings; relief against the Bank of Nova Scotia; dispensing with the respondent’s consent to encumber the matrimonial home; exclusive possession; restraining order; etc.

[2] Further, in his responding materials, the respondent served and filed a motion requesting an order for the listing and sale of the matrimonial home. The respondent’s motion requesting an order to list and sell the matrimonial home was also not properly before the court, not proper response and not appropriate to “piggy-back” on the applicant’s motion. I advised both parties that I would not hear the respondent’s motion as it needed to be scheduled for another day. I further requested that Mr. Zaldin narrow the issues for his client’s motion down from the thirteen so that the more urgent parts of her motion could proceed.

[3] The applicant’s motion materials were lengthy and confusing. They did not actually make it entirely clear what exact relief she was seeking. Her 14C confirmation seemed to narrow the issues down and indicated that the urgent orders she was seeking were related to: a) enforcement of the Order of Douglas J. dated November 24, 2020 regarding disclosure and the payment of funds (the sale proceeds from a boat) into trust (or into court); b) an order for disclosure pursuant to the applicant’s ten (10) or more Rule 20 Requests for Information; c) an order dispensing with the respondent’s consent to renew the mortgage on the matrimonial home; d) an order permitting the applicant to file her two (2) financial statements late (as they were ordered by Douglas J. November 24, 2020); e) an order striking the respondent’s pleadings; f) costs. The applicant’s confirmation also requested an order fixing “a full day cross-examination of the respondent” before the respondent’s motion for the sale of the matrimonial home is scheduled or heard.

[4] I did not permit the applicant to go forward on this last request for questioning. It was not properly before the court and the respondent was not given proper notice of this request.

[5] The materials filed for this motion far exceeded the Notice to the Profession. The applicant’s motion was brought in the context of allegations that the respondent has not complied with or has breached the existing Orders and the Rules. The applicant requested the striking of the respondent’s pleadings so she could proceed by way of uncontested trial if the respondent does not comply.

[6] In this case the parties have not settled any of the issues on a final basis. They are still highly conflicted about many facts and issues, including their valuation date (either December 1, 2019 or February 17, 2020), parenting schedule, and all the financial issues. There are significant unresolved issues which is very unfortunate considering the proceedings were commenced in April 2020. The parties have three (3) children (Jacob is 16 years old, Katheryn is 10 years old and Nicholas is 7 years old). They live with the applicant in the matrimonial home. There is a dispute about the value of the jointly owned matrimonial home and payment of the mortgage, taxes and other bills. There is a dispute about the sale of a boat and the proceeds of same.

[7] Unfortunately, instead of dialing down the conflict and negotiating a common-sense way forward, the parties simply got stuck and refused to cooperate, necessitating judicial intervention.

Decision

[8] For the reasons set out below, the applicant’s motion is dismissed on every issue except for costs.

Discussion

[9] In requesting an order striking pleadings, counsel relied upon r. 1(8) and r. 1(8.1) of the Rules; which state:

1(8) FAILURE TO OBEY ORDER - If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for the just determination of the matter, including,

(a) An order for costs;

(b) An order dismissing a claim;

(c) An order striking out any application, answer, notice of motion, notion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) An order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) An order postponing the trial or any other step in the case; and

(g) On motion, a contempt order.

1(8.1) FAILURE TO FOLLOW RULES – If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).

[10] In addition, in making its decision, the court relied upon r. 2 which says,

…the primary objective of the court is to decide cases justly; that includes the court enforcing its own orders, and ensuring that the parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.[^2]

[11] These rules ensure the procedure is fair for all parties. It should be noted, and the parties and counsel reminded, that r. 2(4) also requires the parties and their lawyers to help the court promote the primary objective.

[12] One of the most basic obligations in family law is to disclose financial information. Compliance with the Rules and with the court’s disclosure orders is extremely important to the disposition of cases. Financial disclosure should be automatic. It should not require court orders, let alone multiple orders, to obtain the necessary production. As the Court of Appeal stated in Roberts v. Roberts,

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.[^3]

[13] The Court of Appeal has repeatedly confirmed that dismissing or striking out a party’s pleadings is a drastic remedy of last resort that should only be applied in exceptional circumstances and where no other remedy would suffice.[^4] The court must also be cautious in striking pleadings where children’s issues are unresolved as the input of both parents may be required for the court to determine the best interests of the children.[^5]

[14] Additionally, as stated by McDermot J. in Balliu v. Balliu,[^6]

the principle of proportionality, which is at the heart of rule 2 is applicable to a motion to strike pleadings. It is essential that the failure to disclose go to documents which are relevant to the matters at issue and reasonably obtainable under the circumstances and considering the importance of the issues and the amounts being claimed.

[15] As stated earlier, in this matter, there is a temporary Order by Douglas J. dated November 24, 2020. In different ways, neither party complied with the Order of November 24, 2020. The applicant served her updated financial statements “utilizing both alleged valuation dates” after the 30 day deadline set by Douglas J. She further served her amended application after the 21 day deadline. Mr. Zaldin advised the court that all of these documents were served in or around February 9, 2021.

[16] The respondent refused to consent for late filing and did not serve any updated financial statements, (he said he already had filed them, but he was talking about prior financial statements that he had filed and clearly misunderstood the Order). He further did not serve an amended Answer. Lastly, the respondent sold the parties boat and did not deposit the proceeds in trust (pending agreement in writing between the parties or court order) as was clearly ordered by Douglas J. The respondent says that he did not think he did anything wrong because he divided the proceeds and sent the applicant what he says is her equal share. He said that he had no other option because he was so desperate for funds due to lack of employment.

[17] At this time, the court is not prepared to strike the respondent’s pleadings. Neither of these parties have followed the disclosure Order (so neither have clean hands). Further, it would be inappropriate to strike the respondent’s pleadings on the parenting issues. Lastly, with respect to the matrimonial home, the parties need to come to a resolution regarding the value of the property and whether or not the applicant can be approved for financing to buy out the respondent’s interest before they can negotiate a transfer or listing and sale.

[18] I am not going to make any orders requiring parties to follow an Order that has already been made. Douglas J.’s Order of November 24, 2020 was very clear. Compliance with the Order got muddied by both of the party’s conflict and lack of cooperation to allow for late filing, and by the respondent’s decision to breach the Order regarding the boat sale and its proceeds. In my view, in order to address the issues fairly and to move this matter forward, the parties require a reset of the deadlines for the materials to be filed. Additionally, some steps need to be taken to ascertain the true value of the matrimonial home and whether or not it is realistic for the applicant to purchase the respondent’s interest (if that is still her intention).

[19] According to the respondent, the mortgage on the matrimonial home is automatically renewing every six (6) months. Although the interest rate may not be ideal, in my view, the applicant does not urgently require an order to dispense with the respondent’s consent to allow her to renew or negotiate a new mortgage. This type of relief is disproportionate at this time and could be highly prejudicial to both parties if it turns out that they must sell the property as it is the largest asset of the marriage.

[20] With respect to the respondent’s breach of the Order regarding the boat sale and its proceeds, it is clear that the respondent purposefully made a conscious decision to disobey a court Order. This is unacceptable. As is said repeatedly in numerous conferences and decisions, court orders are not suggestions, they are to be obeyed. In this situation, in my view, an award of costs is appropriate to address this breach. In addition, the respondent must also provide the applicant with proof of the sale and a full accounting of the proceeds.

[21] Despite resistance from the applicant, I have set a Settlement Conference/Trial Scheduling Conference for August 17, 2021 at 9:30 a.m.

[22] For the reasons set out above, Order to go:

i. The applicant shall serve a consolidated Rule 20 Request for Information with all requests on the respondent on or by June 30, 2021.

ii. The respondent shall respond to the above consolidated Request for Information answering all requests for information on or by July 16, 2021. If he is unable, or unwilling to respond, the respondent shall provide an affidavit describing his best efforts to comply in the event compliance is not possible, already answered, or to provide any other explanation for any refusal.

iii. On or by June 30, 2021 the applicant shall also serve and file two sworn financial statements for the competing valuation dates along with her amended Application.

iv. On or by July 16, 2021, the respondent shall serve and file his own two sworn financial statements for the competing valuation dates; proof of the boat sale and a full accounting of the proceeds of the sale; his amended Answer.

v. An appraisal of the current fair market value of the matrimonial home located at 25 Mennill Drive, Minesing, Ontario, L9X 0J2 shall be conducted by a certified appraiser forthwith.

vi. The parties shall jointly retain the appraiser. In the event that the parties cannot agree on the appraiser, the applicant, through Mr. Zaldin, shall provide to the respondent, by email, the names of two certified real estate appraisers acceptable to her. This shall be completed by June 30, 2021.

vii. Within 72 hours of receiving the email, the respondent shall advise the applicant, through Mr. Zaldin, which appraiser he chooses to conduct the appraisal.

viii. If the applicant has not received a response from the respondent within 72 hours, she may choose the appraiser.

ix. The parties shall equally share the cost of the appraisal. If one party pays more than one half the cost of the appraisal, they shall be reimbursed in the calculation of equalization of net family property.

x. The appraiser shall deliver a copy of their report to both parties.

xi. The applicant shall include in her settlement conference brief a proposal regarding the transfer of the matrimonial home and buy out of the respondent’s interest along with proof she has received approval for mortgage financing sufficient to buy out the respondent’s interest. The respondent shall respond to this proposal in his settlement conference brief.

xii. The respondent shall pay the applicant costs in the amount of $5,000 for his breach of the Order of Douglas J. dated November 24, 2020. Such costs shall be paid and/or deducted from his share of the equalization and/or proceeds of the transfer or sale of the matrimonial home.

xiii. Each party shall bear their own costs of this motion.

xiv. Settlement Conference/Trial Scheduling Conference scheduled for August 17, 2021 at 9:30 a.m. Settlement Conference Briefs with proposals for resolution must be served and filed in accordance with the Rules by all parties.

Justice R.S Jain

Released: June 16, 2021

[^1]: Family Law Rules, O. Reg. 114/99. [^2]: Balliu v. Balliu, 2017 ONSC 3767. [^3]: Roberts v. Roberts, 2015 ONCA 450 [at paras. 11-13]. [^4]: Kovachis v. Kovachis, 2013 ONCA 663. [^5]: King v. Mongrain (2009), 2009 ONCA 486, 66 R.F.L. (6th) 267 (Ont. CA.). [^6]: Balliu v. Balliu, 2017 ONSC 3767.