Bielser v. Bielser, 2021 ONSC 4944

COURT FILE NO.: FC-17-366

DATE: 2021/09/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MIRJAM AEPPLI BIELSER, Applicant

-and-

MICHAEL THOMAS BIELSER, Respondent

BEFORE: Madam Justice D. Summers

COUNSEL: Anna E. Sundin, for the Applicant

Self-represented Respondent

HEARD: November 12, 2020

AMENDED ENDORSEMENT

The text of the original Endorsement of July 13, 2021 was amended on September 24, 2021 and the description of the amendments are appended.

1The applicant, Ms. Bielser, brings this motion for an order striking the respondent’s pleadings, an order for summary judgment on all issues in the application including joint decision-making and primary residence for the youngest child, retroactive and ongoing child and spousal support, the equalization of net family property, the enforcement of prior orders, and costs. She also asks that any monetary order made be satisfied from Mr. Bielser’s one-half share of the proceeds from the sale of the jointly owned matrimonial home and that her one-half share of the proceeds be released to her.

2The respondent, Mr. Bielser, although served with the Notice of Motion and related materials, did not file a response nor did he appear on the motion, via Zoom, or communicate with the court in any manner.

3For reasons that follow, I decline to strike the respondent’s pleadings or make an order for summary judgment. I do, however, make orders for retroactive and ongoing interim child and spousal support. The retroactive support amounts, the outstanding costs award, travel expenses and costs of this motion shall be paid from Mr. Bielser’s share of the proceeds from the sale of the matrimonial home, currently held in trust. I also order that $50,000 be released to Ms. Bielser, from her share of the sale proceeds.

Factual Context and Relevant Litigation Background

4The parties were married in Switzerland in 1997 and emigrated to Canada in 2012. They are Swiss citizens, as are their children, Madlaina and Leilah, ages 19 and 17 years, respectively. Ms. Bielser and the children are also Canadian citizens.

5Although highly educated, the respondent had difficulty finding work in Canada and returned to Switzerland in March 2014. The applicant and children remained in Canada. The respondent returned to Canada for holidays and the children travelled to see him when time permitted.

6When the marriage ended in December 2016, the respondent expected the children would return to Switzerland with him. The applicant disagreed and started this application in early 2017.

7The parties were in court multiple times between February and June 2017 when Engelking J. ordered interim primary residence to the applicant. In August 2017, Engelking J. awarded costs to the applicant of $5,100, payable forthwith.

8The jointly owned matrimonial home was sold in March 2018 generating net proceeds of sale of $214,724. The funds remain in trust with the parties’ real estate solicitor.

9In June 2019, the parties consented to a joint custody order (now joint decision-making) and the children moved to Switzerland to live with their father. The order stipulated that the children could return to Canada whenever they wished, and the respondent would be responsible for all travel costs.

10At the end of January 2020, Leilah returned to Canada to live with her mother. In September 2021, she will enter grade 12. Madlaina remains in Switzerland. She is not in school and works part-time.

11No order for interim child or spousal support was ever made.

12The respondent has represented himself since April 2020. He last sent support to Ms. Bielser, in March 2020.

13Ms. Bielser is 58 years old; Mr. Bielser is 54.

Should the Court Strike the Respondent’s Pleadings?

The Legal Framework

14Subrule 1(8) of the Family Law Rules¹ allows the court to make an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party if that party fails to obey an order in the case, or make any order it considers necessary for a just determination of the matter.

15The exercise of the court’s discretion to strike pleadings and exclude trial participation is one that should be exercised sparingly, in exceptional cases only, and only where no other remedy would suffice. Such an order turns on the particular facts of each case. See Martin v. Watt,² Roberts v. Roberts,³ and Kovachis v. Kovachis.⁴ Under rule 1(8.4) of the Family Law Rules,⁵ if a party’s pleading is struck, that party is not entitled to participate in the case in any way and the court can deal with the case in the party’s absence, including at an uncontested trial.

Analysis

16The applicant submits that the respondent has little, if any, regard for court orders and must be held accountable by having his pleading struck and terminate his right to participate in these proceedings. She says that Engelking J.’s cost award has been outstanding for over 3.5 years and Leilah’s flight costs have gone unpaid for almost 18 months. In addition, the applicant argues that it would be unfair if she is forced to incur the cost of preparing for trial not knowing whether it will be opposed. In this regard, she relies on subrules 2(2), (3) and (4) of the Family Law Rules⁶ and their primary objective which is to deal with cases justly that includes saving time and expense and ensuring the procedure is fair to all parties.

17The evidence satisfies me that subrule 1(8) is engaged. The respondent has not complied with the costs order nor has he reimbursed the applicant $1,500 for Leilah’s travel costs as required under Master Fortier’s order dated June 17, 2019. There is evidence that the applicant emailed the respondent on January 7, 2020 and confirmed the purchase of Leilah’s airline ticket at a cost of $1,500. She requested payment and indicated her willingness to pay half. She says she did not receive a response. According to the applicant, Mr. Bielser no longer communicates with her nor does he respond to her lawyer’s correspondence. Moreover, there seems little question that he has stopped participating in the court process.

18Having found that subrule 1(8) applies, the question now is whether I make an order striking the respondent’s pleadings or exercise my discretion in his favour and make a different order that I consider just in the circumstances. I do the latter and decline to strike his pleadings. Although satisfied that he is in breach of the two orders in question, I do not find this to be an exceptional case where no other remedy would suffice. In my view, payment of the outstanding cost award and flight expenses totalling $6,900 from his share of the proceeds of sale, is a sufficient and just remedy and I make that order. In this regard, I am mindful that it is always better to have both parties before the court, engaged in the process. In Purcaru v. Purcaru⁷, the Ontario Court of Appeal said that without one side’s participation in the trial, there is a risk the court will not have either enough information or accurate information to reach a just result. If the judgment provides for continuing obligations that can only be varied on proof of a change in circumstances, as is often the case in family law, it may be difficult to establish a change in circumstances if the initial judgment is based on incorrect assumptions, thus perpetuating injustice.

Summary Judgment: Is There a Genuine Issue Requiring Trial?

Legal Framework

19Rule 16 of the Family Law Rules⁸ governs motions for summary judgment for a final order on all or part of any claim or defence presented in a case, without need of a trial. Under subrules 16(4) and (6),⁹ the onus is on the moving party to set out the specific facts to prove that there is no genuine issue requiring a trial and only then, if there is no genuine issue requiring a trial, must the court grant summary judgment.

20In the leading case of Hryniak v. Maudlin,¹⁰ the Supreme Court of Canada said there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

21The absence or deficiency of responding material is not sufficient to grant summary judgment by default. The court must still ensure that the evidence submitted by the party seeking summary judgment is sufficiently comprehensive and persuasive to ensure that the court can do justice to the resolution of the issue.¹¹

Analysis

22The applicant did not specifically state that she was seeking an order for summary judgment in the alternative if the court declined to strike the respondent’s pleadings, however, that is how I understand her Notice of Motion. Moreover, the applicant did not make submissions under rule 16 or the law as set out in Hyrniak,¹² nevertheless, I consider both in relation to the evidence before me and find that it does not allow me to make the necessary factual findings to reach a fair and just determination on the merits. Therefore, I cannot say there is no genuine issue for trial and dismiss that part of the applicant’s motion. In arriving at this conclusion, I considered each party’s pleadings, the age of the children, the limited evidence regarding the eldest child, the absence of evidence regarding their post-secondary education plans, if any, the lack of current employment or income information for the respondent, and the draft comparative net family property statement provided by the applicant that indicates a small equalization payment owing from the respondent, of either $8,270 or $15,496.18. The applicant says the statement was prepared while the respondent was represented implying that it was prepared by his counsel. The statement itself is far more comprehensive than the sworn financial statements filed in the Continuing Record. It is not dated, does not indicate who prepared it, nor is it supported by evidence. Applying the standard of fairness set out in Hyrniak¹³, the summary judgment procedure in these circumstances, does not leave me confident that I can find the necessary facts and apply the relevant legal principles to fairly resolve the dispute.

Interim Child and Spousal Support

(i) Child Support

23I am, however, satisfied that I have sufficient evidence to make interim orders for child support and spousal support. According to Ms. Bielser, the respondent sent her $2,000 per month while the children were living with him in Switzerland. Since the children were in his care, I regard these payments as spousal support. However, when Leilah returned to Canada and her mother’s care at the end of January 2020, rather than increase his payment, the respondent reduced it to $1,330 in February and $1,365 in March. He then stopped paying altogether.

24The only evidence of Mr. Bielser’s income is his 2018 contract with Zurich University showing his annual pay at 152,829 Swiss Francs. The applicant submits this income equates to $221,278 CDN based on an exchange rate of 1.44799. To determine Mr. Bielser’s income, I find it appropriate to consider that exchange rates fluctuate. I, therefore, fix his income at $210,000 for purposes of this motion and order that he pay to Ms. Bielser interim child support of $1,731 per month for Leilah Seraina Bielser, born February 17, 2004, commencing February 1, 2020 in accordance with the Child Support Guidelines.¹⁴ This order is without prejudice to the positions either party may take at trial. Based on the commencement date of February 1, 2020, I find the amount owing for the period between then and July 31, 2021 is $31,158. This amount shall be paid to Ms. Bielser forthwith from the respondent’s one-half share of the proceeds of sale, currently held in trust by Amy Jackson of Farber Robillard Leith LLP.

(ii) Spousal Support

25Ms. Bielser seeks spousal support on compensatory and needs based grounds. She says she assumed the traditional role of homemaker throughout the marriage while Mr. Bielser completed his education and pursued his career.

26Both parties attended university in Switzerland. The applicant obtained a Bachelor of Arts in Life Insurance and the respondent completed his PhD in Economics. After graduating, Ms. Bielser worked full-time in the insurance industry until Madlaina was born in 2001. She then worked part-time until 2010. According to Ms. Bielser, she was the children’s primary caregiver and often on her own with them while the respondent was completing his education or working.

27Ms. Bielser describes her marriage as physically and emotionally abusive and led to her hospitalization for stress and burnout on two occasions. She now says that with the stress of marriage behind her, she is healthy again.

28It is Ms. Bielser’s evidence that after moving to Canada in 2012, she worked part-time, mostly in retail positions. Her Notices of Assessment disclose earnings of $10,169, $14,690, and $13,946 in 2017, 2018, and 2019, respectively. In March 2020, she lost her employment due to the COVID-19 pandemic. She then received the Canada Emergency Response Benefit (CERB) and thereafter Employment Insurance. Including the money sent by Mr. Bielser between January and March, the applicant’s evidence indicates cash flow of approximately $29,500 over the course of 2020.

29I find Ms. Bielser is entitled to interim without prejudice spousal support and order that Mr. Bielser pay $4,452 commencing April 1, 2020. This is the mid-range amount using the With Child Support Formula under the Spousal Support Advisory Guidelines based on Mr. Bielser’s income of $210,000 and Ms. Bielser’s 2020 income of $24,566. To determine her income for purposes of this motion, I considered the cashflow chart she prepared setting out payments from various sources and deducted four weeks of CERB that she said she had to pay back.

30For the period between April 1, 2020 and July 31, 2021, I calculate the retroactive amount owed, net of tax, equal to a lump sum amount of $43,864. This is the midpoint after-tax benefit to each party of the monthly amount had it been paid at the time and included by the applicant in the calculation of her taxable income and deducted by the respondent in the calculation of his taxable income. To satisfy this obligation, the sum of $43,864 shall be paid forthwith from Mr. Bielser’s one-half share of the proceeds from the sale of the matrimonial home held in trust.

Should the Court Release to the Applicant Her Share of the Sale Proceeds?

31I find no prejudice to Mr. Bielser in the release of $50,000 to Ms. Bielser from her share of the sale proceeds and I make that order. Based on the evidence before me, I find, on the balance of probabilities, that Mr. Bielser will owe an equalization payment to Ms. Bielser. Moreover, to the extent that receipt of up-to-date income information may impact the calculation of support, I am satisfied that the funds remaining in trust to Ms. Bielser’s credit will be adequate to address any adjustment that may result at trial.

Divorce

32The Applicant also sought an order for divorce but did not ask to sever the corollary issues to trial. Nor did she provide the court with the necessary evidence to support an order for divorce in accordance with rule 36. I, therefore, dismiss the applicant’s claim for a divorce without prejudice to her returning it to me by way of a 14B motion in writing. Service on the Respondent will be required.

Costs

33Ms. Bielser seeks full recovery costs for this motion in the amount of $4,746. Considering the provisions of r. 24 of the Family Law Rules¹⁵, the degree of success achieved by the applicant, and what I regard as the respondent’s unreasonable behaviour in the conduct of this litigation, I find costs of $4,000 to be reasonable and proportionate. This sum shall also be paid from the respondent’s one-half share of the sale proceeds.

My Order

34My order is as follows:

1. The applicant’s claim for an order for summary judgment is dismissed.

2. The applicant’s claim for a divorce is dismissed without prejudice to her returning it to me by way of a 14B motion in writing. The respondent shall be served.

3. Commencing February 1, 2020, the respondent shall pay child support to the applicant of $1,731 per month for Leilah Seraina Bielser, born February 17, 2004, in accordance with the Child Support Guidelines, S.O.R./97-175, as amended, and his income of $210,000. This order is without prejudice to the positions either party may take at trial. To satisfy his obligation to pay child support for the period between February 1, 2020 and July 31, 2021, the respondent shall forthwith pay to the applicant a lump sum of $31,158.

4. Commencing April 1, 2020, the respondent shall pay interim without prejudice spousal support to the applicant of $4,452 per month. To satisfy his obligation to pay spousal support for the period between April 1, 2020 and July 31, 2021, the respondent shall forthwith pay to the applicant a lump sum of $43,864.

5. The respondent shall immediately pay to the applicant $5,100 in satisfaction of Justice Engelking’s cost order dated August 3, 2017, $1,500 to reimburse the applicant for the cost of Leilah’s air travel between Switzerland and Ottawa, and $4,000 as costs for this motion.

6. The total amount of $85,622 owing under paragraphs 3 to 5 above shall be paid to Ms. Bielser from Mr. Bielser’s one-half share of the proceeds from the sale of the matrimonial home at 1138 Falaise Rd, Ottawa, ON, currently held in trust by their solicitor, Amy Jackson, now of Farber Robillard Leith LLP. This order shall be their good and sufficient authority.

7. Ms. Bielser shall receive payment of $50,000 from her one-half share of the proceeds from the sale of the matrimonial home at 1138 Falaise Rd, Ottawa, ON, currently held in trust by their solicitor, Amy Jackson, now of Farber Robillard Leith LLP. This order shall be their good and sufficient authority.

Justice D. Summers

Date: September 24, 2021

APPENDIX

1. The issue of a divorce has been addressed with the insertion of the following section and paragraph:

Divorce

32The Applicant also sought an order for divorce but did not ask to sever the corollary issues to trial. Nor did she provide the court with the necessary evidence to support an order for divorce in accordance with rule 36. I, therefore, dismiss the applicant’s claim for a divorce without prejudice to her returning it to me by way of a 14B motion in writing. Service on the Respondent will be required.

2. Paragraph 34(2) has been added to order as follows:

The applicant’s claim for a divorce is dismissed without prejudice to her returning it to me by way of a 14B motion in writing. The respondent shall be served.

3. The reference to “the total amount of $85,622 owing under paragraphs 1 to 4 above…” at paragraph 34(6) of the order has been changed to read “the total amount of $85,622 owing under paragraphs 3 to 5 above…”.

Footnotes

1. 1O. Reg. 114/99.
2. 22020 ONCA 406, at para. 7.
3. 32015 ONCA 450, at para. 15.
4. 42013 ONCA 663, at para. 24.
5. 5Supra, note 1.
6. 6Ibid.
7. 72010 ONCA 92, at para. 48.
8. 8Supra, note 1.
9. 9Ibid.
10. 102014 SCC 7, para. 49.
11. 11Simpson v. Cuff, 2019 ONSC 2856, at para. 22, citing Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316.
12. 12Supra, note 10.
13. 13Supra, note 10.
14. 14S.O.R./97-175, as amended.
15. 15Supra, note 1.