Court File and Parties
COURT FILE NO.: FS-16-39409
DATE: 2021-07-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amy Dawn Lamothe, Applicant
AND:
Patrick Gregory Ellis, Respondent
BEFORE: Chozik J.
COUNSEL: Amy Voss, for the Applicant
Patrick Ellis, Self-represented Respondent
HEARD: April 8, 2021 by video conference
ENDORSEMENT
[1] The Applicant brings a motion to strike the Respondent’s Answer and all subsequent pleadings pursuant to rule 1(8) of the Family Law Rules, O. Reg. 114/99, for non-compliance with court orders.
[2] In particular, the Applicant alleges that the Respondent has failed to pay costs totalling $16,500 ($10,000 ordered by Conlan J. on January 12, 2021 and $6,500 ordered by Miller J. on March 25, 2021) and that he failed to comply with Miller J.’s December 7, 2020 decision ordering him to return to arbitration in accordance with a prior order of Kurz J. dated December 6, 2019. These, she submits, are but a few breaches that are part of the Respondent’s chronic and persistent disregard of court orders. This motion was the 23rd court attendance in almost six years of litigation that has cost the Applicant over $100,000.
[3] The Applicant also claims that the Respondent has not paid monthly child support, has not complied with terms regarding the location of overnight access with the parties’ child and that he has not provided any reasonable explanations or disclosure with respect to his employment (or unemployment), income or present financial circumstances.
[4] The Respondent, in his unsworn affidavit submitted to the court at the hearing of the Applicant’s motion,[^1] admits that he has not paid the costs ordered against him and that he did not return to arbitration as ordered to by Miller J. He takes the position that he is financially unable to do so. He states that he plans to appeal the costs order of Miller J.
[5] He does not deny that he has not paid monthly child support. In his affidavit, he admits that for the months of March and April 2021 he paid $250 instead of $500 per month ordered. He maintains that he was unemployed for ten months in 2020, despite the fact that he was a self-employed real estate agent. He retrained as a truck driver in the summer and fall of 2020, worked for three months, but became unemployed again in February 2021 a few days after payment of Conlan J.’s costs award was due.
[6] The Respondent does not deny that he has exercised weekday overnight access with the parties’ child in Beamsville, Ontario contrary to Conlan J.’s order that states that such access take place in Mississauga.
[7] For the reasons that follow, I have concluded that the Respondent’s pleadings must be struck.
BACKGROUND:
[8] The parties were married on May 11, 2012 and separated on June 28, 2015. There is one child of the marriage, a boy who is now seven years old.
[9] From the time of their separation until June 28, 2018 the parties were engaged in high conflict litigation over parenting. Howard Hurwitz conducted a s. 30 assessment. Mr. Hurwitz’s recommendations were incorporated into Minutes of Settlement, which were endorsed by Coats J. on June 29, 2018. Those recommendations and the resulting Final Order provide that the Applicant have sole custody of the child. The regular parenting schedule provides for the Respondent to have weekday overnight parenting time and requires him to drop the child off at school the next day.
Order regarding Weekday Overnight Access:
[10] One of Mr. Hurwitz’s recommendations, and subsequent terms of the Final Order, required both parties to maintain a residence within 45 minutes of travel time from one another and the child’s school. Paragraph XVIII (a) of the Final Order states:
The parents shall maintain their respective physical residences within 20 kilometres and 45 minutes of travel time from one another and [the child’s] respective school, in order to maintain the practical feasibility of their schedule of residence as noted above.
Following the making of that Final Order, the Respondent moved to Beamsville, Ontario. I accept the Applicant’s evidence (unchallenged on this point) that Beamsville is approximately 55-60 kilometres away from her residence and the child’s school, across the busy Skyway Bridge.
[11] The issue of weekday overnight access in light of the Respondent’s move was subsequently dealt with in mediation/arbitration in February 2020. It resulted in an arbitral award requiring the Respondent to exercise all overnight parenting time at his parent’s home in Mississauga. Paragraph 6 of the Interim Arbitral Award, states:
In order not to unduly disrupt [the child] and to ensure that [the child] will not spend an undue amount of time travelling to and from school between homes, the father shall exercise overnight parenting time with [the child] at his parent’s home in Mississauga. Provided it is not on a school day or school night, the father may spend the occasional night in Beamsville with [the child] in order to familiarize [the child] with the father’s new home. However, under no circumstances will the father spend a night with [the child] at Beamsville when he has to transport [the child] to and from school or from his mother’s home.
Order of Conlan J. dated July 2, 2020:
[12] On July 2, 2020 the Interim Arbitral Award was incorporated into an order of this Court by Conlan J., following an urgent motion brought by the Applicant because of the Respondent’s alleged non-compliance with those terms.
[13] The Interim Arbitral Award, at para. 12, also required the Respondent to make monthly child support payments of $500 as follows:
The husband shall commence paying child support on an interim without prejudice basis of $500 per month commencing July 15, 2020 and payable monthly on the 15th day of each month until the mediation on September 8, 2020. The father shall also pay to the mother $500 towards his summer camp contribution on or before March 15, 2020.
This term was also incorporated into Conlan J.’s July 2, 2020 order.
[14] According to the Applicant, the Respondent did not pay any child support for the months of April to September 2020 until the eve of her motion before Miller J. returnable November 12, 2020. As of March 29, 2021, when she swore her affidavit, he had not paid any child support for the month of March 2021.
[15] On January 12, 2021 Conlan J. ordered the Respondent to pay the Applicant costs of $10,000 within 30 calendar days. Those costs remain unpaid.
Order of Miller J.:
[16] It was intended by the parties that the mediation/arbitration continue on September 8, 2020. However, Philip Epstein, who was conducting the mediation/arbitration, retired and it had to be rescheduled. On November 12, 2020, both parties brought motions before Miller J. The Respondent sought a trial date as soon as possible and a new s.30 assessment. The Applicant sought a variety of relief, including an order to strike the Respondent’s pleadings under r. 1(8), or in the alternative, a return to mediation/arbitration before Aaron Franks.
[17] In an Endorsement dated December 7, 2021, Miller J. ordered the Respondent to return to mediation/arbitration with Aaron Franks pursuant to the order of Kurz J. dated December 4, 2019. The Endorsement of Miller J. states, at para. 20, the following:
There shall be an Order that Aaron Franks at Epstein Cole LLP shall be appointed to act as the parties ‘mediator/arbitrator pursuant to the parties’ Mediation/Arbitration Agreement. The parties are encouraged to make enquiries of Mr. Franks in respect of a payment plan so as to make the process as affordable as possible for each of them. The parties shall cooperate in engaging Mr. Franks to continue the arbitration forthwith.
[18] Miller J. was not prepared to consider the other relief sought by the Applicant at that time, which included striking the Respondent’s pleadings under r. 1(8).
[19] According to the order of Kurz J. dated December 4, 2019, the Respondent is responsible for paying for half of the costs of the mediation/arbitration. Following Miller J.’s order to return to mediation/arbitration, on January 8, 2021 the Applicant offered to pay the Respondent’s share of a three-hour mediation/arbitration with Mr. Franks ($3,500) in order to schedule the mediation/arbitration for as soon as possible. This offer was conditional on the Respondent reimbursing her for this cost within 90 days. Mr. Franks wrote to the Respondent to get his comments the same day. According to the Applicant, the Respondent did not respond for more than two months and the mediation/arbitration could not be scheduled as a result.
[20] On March 28, 2021, Miller J. ordered the Respondent to pay costs of $6,500 to the Applicant forthwith. As of the hearing of this motion on April 8, 2021, those costs remained unpaid.
The Respondent’s Employment:
[21] At the time that the parties separated, the Respondent was employed as a real estate agent. According to the Applicant, he worked primarily for his father’s significant building/development company. His salary was made up of commission income and was minimized by deducting expenses from his taxable income. At the request of the Applicant, an income report was prepared by Trevor Hood some time ago but it is incomplete.
[22] According to the Respondent, in early 2020, he was preparing to work on a new home sales project in Woodbridge. The project was put on hold due to COVID-19. No evidence or explanation is provided for what happened with that employment or why he chose not to work as a real estate agent otherwise.
[23] According to the Respondent, in the summer of 2020, he began training as a truck driver. In November 2020, he was hired by Linamar Transportation, but three months later he was fired due to his “availability”. In his affidavit, the Respondent states that being a truck driver was “not a great fit” for his personality and “for single fathers.”
[24] The Respondent claims that he was not employed for 10 months in 2020. He claims that he has been unemployed since February 16, 2021. He claims that he is “working hard every day to acquire a new job” but is finding it challenging due to the pandemic. He has provided no evidence of any efforts to find employment. Attached to his unsworn affidavit are a Notice of Assessment for 2019, showing a line 150 income of $57,441 and bank statements for a TD Bank account for the period January 1, 2020 to March 31, 2021.
LEGAL PRINCIPLES:
[25] On a motion to strike pleadings, there are three broad issues that must be determined:
a. First, is there a triggering event justifying the striking of pleadings?
b. Second, should the pleadings be struck in whole or in part, or is a less drastic remedy more appropriate?
c. Third, if the pleading is struck in whole, what are the appropriate consequences for the party whose pleading was struck?
(Mullin v. Sherlock, 2018 ONCA 1063, at paras. 44-47.)
[26] In dealing with any type of motion to strike a pleading, the court must keep in mind the primary purpose of the Family Law Rules, as set out in r. 2(2), which is to deal with cases justly. Rule 2(2) requires the court to apply the Rules to promote this primary objective: Mullin, at para. 39.
[27] Rule 2(3) specifies that dealing with cases justly includes: (a) ensuring that the procedure is fair to all parties; (b) saving time and expenses; (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: Mullin, at para. 39.
[28] In family law litigation, striking a party’s pleading is considered as a remedy of last resort: Roberts v. Roberts, 2015 ONCA 450, at para. 15; Mullin, at para. 33.
[29] At the same time, the Rules are to be interpreted broadly. Provisions addressing the consequences of non-compliance with court orders and Rules are important tools for judges presiding over family law matters to prevent a party from embarking in litigation abuse. These provisions must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of family law, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable, and emotionally respectful matter: Levely v. Levely, 2013 ONSC 1026, at paras. 12-13.
[30] The striking of pleadings need not be reserved for “drastic and extreme cases”: Peerenboom v. Peerenboom, 2018 ONSC 5796, at para. 22; Manchanda v. Thethi, 2016 ONSC 3776, at para. 75, aff’d 2016 ONCA 909. Striking pleadings is extreme relief that is appropriate in some circumstances. Court orders are “not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences”: Gordon v. Starr, 2007 CanLII 35527, at para. 23. As with all requests to strike pleadings, this remedy should only be involved in response to non-compliance with orders and Rules, in exceptional circumstances where no other remedy would suffice: Roberts, at para. 15; Mullin, at para. 33
[31] The determination of whether to grant this relief involves a balancing of several interests, including the aggrieved party’s interest in having their case heard by the court, the desirability of having fulsome evidence in addressing the family law issues and the overarching consideration of ensuring respect for the administration of justice through compliance with orders and Rules of the court: Hill v. Gregory, 2018 ONSC 6847, at para. 41 The analysis must be carried out having regard for the need for an effective, efficient and affordable family law justice system that is sensitive to the needs of litigants: Levely, at para. 12
[32] Given the drastic nature of an order striking pleadings, the responding party must be given a reasonable opportunity to fully respond to the motion. To this end, I have reviewed and considered the Respondent’s unsworn affidavit dated March 29, 2021 despite the fact that it was not properly filed with the court.
ANALYSIS:
[33] I am satisfied that the Respondent has not complied with court orders. He has not paid the costs ordered by Conlan J. or Miller J. He did not return to mediation/arbitration as ordered by Kurz J. and Miller J. He admits that he has not paid monthly child support as ordered.
[34] In his email to Ms. Voss dated February 12, 2021 the Respondent states that he cannot offer a date in the foreseeable future when he will be able to cover the retainer fee for the arbitration/mediation. He maintains this position before me. He claims that he is unable to afford to pay costs, his share of mediation/arbitration or monthly child support because he is unemployed. I reject his evidence in this regard.
[35] Even on his evidence, the Respondent’s income from 2015 to 2019 exceeded $50,000 per year. Bank records attached to the Respondent’s unsworn affidavit show deposits of approximately $93,000 in 2020 and nearly $17,000 for the first three months in 2021. The Respondent has provided no evidence as to why he is unable to work or why he is unable to work full time.
[36] In his affidavit, the Respondent claims that his income in 2020 was $20,000 to $25,000. This claim is not credible. It is contradicted by $93,000 deposited to his bank account that year. $20,000 to $25,000 is a minimal income that would be imputed to him at minimum wage. Until 2020, he had an established career in real estate. He offers no explanation for why he abandoned that career in the midst of a real estate boom. He has provided no documentation with respect to his employment as a truck driver or his purported termination from that job. He has provided no evidence to support his claims that he is actively looking for work.
[37] I am mindful that the costs award made by Miller J. was made approximately ten days prior to the hearing of the motion. Ordinarily this would give me pause: it may be that a litigant requires a bit more time to comply with the order. However, in this case, the Respondent does not ask for more time. He states that he intends to appeal that costs award. However, he does not identify any viable ground of appeal. No notice of an appeal has been given. This, and the other circumstances detailed below, lead me to conclude that more time to pay will not result in the Respondent complying with Miller J.’s costs order.
[38] On the issue of overnight weekday access, the Applicant maintains that contrary to the order of Conlan J., the Respondent continues to take the child to Beamsville for weekday overnight access. This results in the child having to suffer a long commute that is prohibited by the arbitral award and court order. In her evidence she sets out a number of examples of the child coming to school exhausted.
[39] In his affidavit, the Respondent states that weekday overnight access takes place in Mississauga. At the same time, he argues that the commute to Beamsville is less than 45 minutes. He states that to make travel easier on the child, he travels in the HOV lanes on the QEW and on the 407 ETR and that it takes him 33 to 39 minutes to travel to the child’s school in Burlington. The Respondent misses the point. The Interim Arbitral Award and subsequently the order of Conlan J. is clear: overnight weekday access is to take place in Mississauga. He breaches that court order every time he has the child overnight during the week at his home in Beamsville.
[40] On the evidence before me, I am satisfied that the Respondent has breached the orders of Coats J., Kurz J., Conlan J., and Miller J., including two costs awards.
[41] I find that the Respondent’s breaches of these court orders are willful and deliberate.
[42] I am satisfied that the most effective remedy for the Respondent’s non-compliance is to strike his pleadings. In making this determination, I have considered and weighed the following factors:
a. That the Respondent’s non-compliance is extensive and persistent;
b. That his non-compliance is willful in nature;
c. That the Respondent has not made any reasonable efforts to comply with the court orders and is unable to provide acceptable explanations for the breaches;
d. That in claiming that he is financially unable to pay the costs awards and minimal child support, the Respondent has not provided adequate financial disclosure to the Applicant or the underlying documentations that would allow her (and the court) to make adequate determinations as to his income and employment; and
e. That the remedy must not go beyond that which is necessary to express the court’s disapproval of the conduct in issue and must be proportionate to the issues in question and the conduct of the Respondent.
[43] The Respondent’s response to this motion is symptomatic of his disregard for the court process. He made no effort to properly file his unsworn affidavit with the court. On April 6, 2021, two days before the hearing of this motion, an automatic message was generated to him advising him that his material was rejected. His only explanation for why he took no further steps to remedy the situation and get his affidavit properly sworn or before the court was that the courthouse was “too far.” I do not accept this explanation. The Respondent is an experienced litigant; he has been involved in this litigation for six years. He deliberately took no further steps to ensure that his material in response to this motion was properly before the court.
[44] Moreover, his unsworn affidavit is largely unresponsive to the issues on this motion. Large segments of his affidavit – paras. 16 to 61 – appear to be cut and pasted from some previous court documents. The information is obviously old, outdated, and irrelevant to the issues before the court on this motion.
[45] In the circumstances of this case, I find that the Respondent’s failure to pay the two costs awards and failure to attend for mediation/arbitration as ordered to twice by this court is willful, flagrant, and extreme. It is part of a pattern of persistent non-compliance. I conclude that the Respondent views court orders as suggestions.
[46] I have considered whether a remedy less drastic than striking pleadings would suffice in the circumstances. In particular, I considered whether to permit the Respondent to revive his standing if he paid the costs ordered within a limited time or engaged in arbitration as previously ordered. I considered whether to permit the Respondent limited rights of participation in the proceeding. I have concluded that a remedy short of striking his pleadings would not suffice.
[47] The Respondent’s evidence is clear: he would not comply with these court orders if given further opportunity to do so. Despite costs awards already having been made, he asks that “final costs” be determined at the conclusion of the case. The orders of Conlan J. and Miller J. were clear. The time frames for compliance were fair and reasonable. In his email to Ms. Voss dated February 2021, he states that there is no date in the foreseeable future when he could afford to pay his share of the arbitration/mediation. In his affidavit, he maintains this position. More time to pay or more court orders giving him an opportunity to comply will not suffice.
[48] The Respondent acknowledged these breaches of the court orders, but at the same time did not acknowledge any wrongdoing. He admits that he has not paid the costs ordered against him on two occasions and that he did not return to arbitration as ordered. He also admits that he did not pay child support as ordered by Conlan J. He stated during the oral hearing that if costs were ordered against him, he would not pay and that amount would simply add to what is already outstanding. In my view, he also admits to exercising overnight weekday access with the child in Beamsville. Despite these admitted breaches of court orders, he states in his affidavit, at para. 4, that he “continues to abide by all orders unwaveringly.” This is simply not true.
[49] Allowing the Respondent to participate in a trial would prolong the proceedings with irrelevant issues. It would not likely result in him providing the required information with respect to his income or employment or genuine efforts to find suitable employment. The Respondent has had ample opportunity to provide the Applicant with satisfactory disclosure in this regard, including in response to this motion. He has not done so.
[50] Allowing the Respondent to participate in a trial would be prejudicial to the Applicant. I accept her evidence that this litigation has already cost her more than $100,000. It would drive up her costs of the litigation, without any prospect of being able to recoup any part of those costs if she is successful. All of the parenting issues have been resolved. The only issues requiring adjudication are financial issues. Full and complete financial disclosure, as well as reasonable explanations for the various career changes and efforts to find employment are critical to this case.
[51] The Respondent has had ample opportunity to make financial disclosure and respond to the reasonable inquiries regarding this employment status and present financial circumstances. He has not done so. Allowing a trial to proceed, and asking a trial judge to draw adverse inferences, will simply prolong and complicate the inevitable at the expense of the Applicant.
[52] In all the circumstances, striking of the Respondent’s pleadings is the only remedy that will suffice. Any lesser remedy is not appropriate. I decline to make an order that any of the consequences under r. 1(8.4) would not apply.
ORDER:
[53] The Applicant’s motion is allowed. The Respondent’s Answer and any subsequent pleadings are struck pursuant to Rule 1(8) of the Family Law Rules. The Applicant may proceed to set this matter down as an uncontested trial on the remaining issues. The matter is to be set to a long motion date to be scheduled by the trial coordinator, with three hours to be set aside.
COSTS:
[54] The Applicant sought costs of $5,000 inclusive of disbursements and HST for this motion. I find that this amount is fair and reasonable in the circumstances. The motion required the preparation of two affidavits and a factum and the review of the Respondent’s unsworn affidavit plus attendance for most of the day in court.
[55] The Respondent did not challenge the reasonableness of this quantum. Rather, he submitted that any award of costs will simply add to the total he already owes and is unable to pay. For the reasons already set out above, I do not accept his submission in this regard.
[56] I find that costs of $5,000 are fair, reasonable, and proportionate in the circumstances. It is an amount that an unsuccessful litigant can reasonably expect to pay for a motion such as this one.
[57] The Respondent shall pay costs of $5,000 to the Applicant forthwith.
(Original signed by)
Chozik J.
Date: July 9, 2021
[^1]: The Applicant acknowledged that she was served with the Respondent’s unsworn affidavit dated March 29, 2021. The Respondent did not file or attempt to file the unsworn affidavit or an affidavit of service with the court. The only document he attempted to file was the Form C: Confirmation of Motion: it was rejected for filing on April 6, 2021 at 11:31 a.m. Notice of the rejection was emailed to him by the on-line system. With my permission, the Respondent emailed a copy of his unsworn affidavit to the court during the hearing of this motion. It is marked as Exhibit A on the motion. Confirmation of what was submitted on-line for filing and the on-line rejection of Form C: Confirmation of Motion is marked as Exhibit B on the motion.