Superior Court of Justice - Ontario
RE: Jean-Claude Robert Gagne, Applicant
AND
Jennifer Renee Isaacs, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Alice Weatherston, Counsel for the Applicant Self-represented, Respondent
HEARD: May 10, 2021 by video conferencing
REASONS FOR DECISION
M. Smith J
1Jean-Claude Robert Gagne and Jennifer Renee Isaacs have never been married. They have one child together, Justin Gagne, born on July 21, 2009. Justin has Autism and is a high needs child. He has been in the Father’s sole care since July 2017.
2The Father has been seeking child support and contribution to special and extraordinary expenses (“section 7 expenses”) from the Mother for several years. He has also been requesting that the Mother provide him with her financial disclosure.
3The Father has diligently tried to advance the issues before the Court, with little success. He has obtained Court orders against the Mother for financial disclosure, but the Mother has not fully complied. He seeks a contempt order against the Mother.
4The Father also moves for summary judgment. He claims that the Mother’s annual income should be imputed at $40,000.00. He seeks a final order for child support, a designation as the beneficiary for life insurance, and section 7 expenses.
5The Mother has been struggling with mental health issues. She is self-represented in these proceedings.
6The issues that I need to determine are:
a. Is the Mother in contempt of a Court order?
b. Should summary judgment be granted to the Father?
7For reasons that follow, the Motion for contempt is dismissed. Partial summary judgment is granted to the Father.
ANALYSIS
Issue #1 – Is the Mother in contempt of a Court order?
8The Father must prove, beyond a reasonable doubt, that the Mother has breached a Court order. The Father’s onus is very high. As described below, one of the elements that the Father needs to prove is that the Mother intentionally breached a Court order. The Father has failed to prove that the Mother willfully disregarded a Court order.
Overview
9On November 12, 2019, Justice Pelletier ordered, on consent, that the Mother provide financial disclosure within 15 days and he adjourned the remainder of the issues. The Mother agreed to provide income tax returns, notices of assessments, paystubs, proof of any disability, social assistance or unemployment payments, and life insurance benefits. The Mother did not fully comply with Justice Pelletier’s Order.
10The parties appeared before Justice Laliberté on February 5, 2020 who granted the Mother a further opportunity to provide financial disclosure. The Mother did not fully comply with Justice Laliberté’s Order.
11The Mother did not file any materials for the Motion that was before me. I permitted the Mother to file materials, with a right of reply to the Father.
12The Father claims that the Mother remains in contempt because she has not provided any notices of assessment, pay stubs, proof of current income, disability payments, or proof of life insurance benefits.
13The Mother says that she has been hyper avoidant for years. She has been followed by mental health specialists and she has recently been diagnosed with mental health disorders. She argues that she has not purposely breached the Court orders. She is following the most recent medical recommendations and she feels that she is finally sorting out her life.
Legal principles
14To succeed in his contempt motion, the Father needs to establish three elements beyond a reasonable doubt: (1) the Court orders are clear and unequivocal; (2) the Mother had actual knowledge of the Court orders; and (3) the Mother intentionally breached the Court orders: Moncur v. Plante, 2021 ONCA 462.
15If the three elements have been proven by the Father, I may exercise my discretion to decline a contempt finding where it would be an injustice and consider if there are any alternative options to a declaration of contempt.
Discussion
Are the Court Orders clear and unequivocal?
16The language used in the orders of Justices Pelletier and Laliberté (“Court Orders”) is clear. The Mother was required to disclose financial documents that are well known to her. I do not find that there is any confusion with the Court Orders that have been made.
Did the Mother have actual knowledge of the Court Orders?
17The Mother does not dispute that she was aware of the Court Orders. The Father’s counsel has written to the Mother on several occasions requesting disclosure of her financial records in accordance with the Court Orders.
Has the Mother intentionally breached the Court Orders?
18I am not convinced me that the Mother’s breach of the Court Orders was wilful. I believe that the Mother’s mental health explains her conduct. I do not find that the Mother has disobeyed Court Orders deliberately.
19The Mother has been struggling with mental health issues for many years. It reached a critical point at the beginning of this year, necessitating medical intervention and hospitalization. The Mother filed a medical report dated March 18, 2021, authored by Dr. David Bakish from the Royal Ottawa Health Care Group. Dr. Bakish reports that the Mother has been experiencing significant stresses related to these legal proceedings and she was recently attacked at work.
20The Father submits that Dr. Bakish’s report does not explain the Mother’s failure to produce disclosure since November 2019 because the diagnosis is in reference to a recent traumatic experience at work. I disagree. Dr. Bakish’s report goes beyond the recent traumatic event at work. He comments that the Mother’s past psychiatric history is complicated, including addiction, eating disorder, ADHD, borderline personality disorder, post-traumatic stress, and depressive episodes. She presently suffers from chronic severe headaches. Based on his assessment, Dr. Bakish opines that the Mother is very anxious, demonstrates avoidance behaviour and occasional panic attacks. Dr. Bakish diagnoses the Mother with post-traumatic disorder, major depressive disorder mixed with anxiety. Changes in her medication are prescribed, as well as therapy.
21In my view, Dr. Bakish’s comments regarding the Mother’s complex and significant psychiatric history explains, at least in part, the Mother’s persistent failure to produce disclosure. For example, the Mother did not attend to completing four years of tax returns until very recently. Her failure to do so can be explained by Dr. Bakish’s diagnosis of avoidance behaviour, coupled with her other mental health issues. I believe that a person with the Mother’s medical profile would have difficulty in fully complying with the Court Orders. I have doubt regarding the Mother’s alleged willful and deliberate conduct of disobeying the Court Orders. I am not satisfied that the Mother was purposeful in her failure to provide complete financial disclosure.
22Even if I found the Mother deliberately breached the Court Orders, I would exercise my judicial discretion and not find her in contempt because I believe that it would only serve to exacerbate her mental health illness and cause a significant injustice. In addition, I believe that it would be contrary to Justin’s well-being and best interest if the Mother was burdened by a serious court finding of contempt.
23In my view, the Mother is acting in good faith by seeking out professional assistance to deal with her mental health issues. I believe that the Mother wants to get healthier and her most recent medical consultations demonstrate that intent. If the Mother continues to focus on her health and follow the proper treatment, she will be better suited to support the Father with Justin’s upbringing.
24For these reasons, the Father’s contempt motion is dismissed.
25The Mother acknowledges that the financial disclosure is not complete. The Mother must obtain and serve the remaining documents upon the Father.
Issue #2 – Should summary judgment be granted to the Father?
26The Father seeks summary judgment for: (1) imputation of income in the amount of $40,000.00 annually to the Mother, retroactive to July 2017; (2) child support in the amount of $509.00 per month, commencing July 2017 and continuing on the first day of each month thereafter; (3) section 7 expenses retroactive to July 2017 and on an ongoing basis; (4) overpayment of child support for the months of August to November 2017; and (5) designation of the Mother’s life insurance policy, in trust for Justin.
27I find that the Father is entitled to partial summary judgment against the Mother regarding the section 7 expenses incurred and the overpayment for child support. In my view, these two issues are clearly severable from the others and there is no risk of any duplicative or inconsistent findings if the balance of the case proceeds to trial.
28For the imputation of income and the designation of life insurance, I require further clarification of the evidence before deciding if there is a triable issue. The evidence that needs to be clarified includes the Mother’s mental health condition (past and present), her ability to work on a full-time basis (past and present), and whether the Mother has obtained or can purchase a life insurance policy to secure child support payments. I believe that this clarification can be achieved by calling oral evidence on this motion by way of a mini-trial. If the imputation of income can be determined at a mini-trial, the Mother’s obligations vis-à-vis her proportionate share of Justin’s section 7 expenses and the amount of child support payable can be finalized.
Overview
29Since 2017, the Mother has not consistently worked on a full-time basis. The Father believes that the Mother has been underemployed, and he wishes me to impute an annual income of $40,000.00. The Mother claims that her health prevents her from working full-time. She relies upon her family physician, who has recently opined that she can only work part-time at present.
30The Father has incurred section 7 expenses totalling $35,731.00. To date, the Mother has paid the Father the sum of $7,730.50 towards child support and section 7 expenses. The Father also claims that for the period of August to November 2017, he overpaid child support in the amount $2,245.00.
Legal Principles
31In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada sets out a two-step process for determining if summary judgment should be granted.
32First, I must determine if there is a genuine issue for trial, based on the evidence before me. A genuine issue requiring a trial exists if I cannot reach a fair and just determination on the merits of the motion for summary judgment.
33Second, if I find that a genuine issue exists after my initial review, I need to determine if a trial can be avoided by using additional fact-finding powers that are available to me. These powers include weighing the evidence, evaluating the credibility, and drawing reasonable inferences. In exercising these powers, I may order that a mini-trial be held to deal with a narrow factual issue that is in dispute: Rules 16 (6.1) and (6.2) of the Family Law Rules, O. Reg. 114/99 (the “Rules”).
34If a party is self-represented, judicial assistance may be provided in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council. These principles have been endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470.
Discussion
Statement of Principles on Self-represented Litigants and Accused Persons
35In my opinion, two principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons should be considered in this case (the “Principles”). The first principle is found at page 2, para. 1, under the heading “Promoting Rights of Access” and it reads: “Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating”. The second principle is found at page 4, para. 1, under the heading “Promoting Equal Justice”. It says: “Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”
36A motion for summary judgment is not simple, procedurally speaking. Rules and processes need to be followed, including that the person responding to the motion must put their best foot forward or they risk losing. For a self-represented person, the procedure to be followed in defending a motion for summary judgment may be difficult to understand. In my view, it is important for the Court to provide a self-represented litigant the opportunity to advance their case in the most just and equitable manner.
37The Father wishes me to make adverse inferences against the Mother because she has not disclosed all her financial information and her evidence is unsworn. Regarding the medical evidence submitted by the Mother, the Father argues that it is hearsay and no weight should be given to it in relation to the imputation of income.
38The Mother has not followed the proper procedure because she did not understand. Initially, she did not file any responding materials to the Father’s motion for summary judgment. In my opinion, the Mother’s failure to follow the procedural rules was not done in a bad faith manner. The Mother has recently been experiencing some serious mental health difficulties and it is clear to me that she was unfamiliar with the steps that needed to be taken in defending the Father’s motion.
39Keeping in mind the Principles set out above, I believe that this is a case where judicial assistance must be provided to the Mother. That is the reason that the Mother was permitted to file additional materials after the summary judgment motion was heard. That is also the reason that the Mother will be afforded a further opportunity to clarify the evidentiary record that remains deficient, regarding certain issues that need to be determined on this summary judgment motion. I am not prepared to make any adverse inferences against the Mother at this time.
Is there a genuine issue for trial regarding section 7 expenses?
40I do not find that the there is a genuine issue for trial regarding the quantum of the section 7 expenses incurred to date by the Father.
41The Father is employed with the Federal Government of Canada and he has extensive medical coverage through his plan. His partner, Elizabeth Goheen, also has insurance coverage through her work. Together, they have submitted Justin’s section 7 expenses to the insurance companies, but they have not received full reimbursement. The amount that has not been paid by insurance is $35,731.00.
42Justin’s needs are high because of his medical condition. The Father has incurred substantial expenses related to Justin’s health and education: physiotherapy, occupational therapy, massage, chiropractic therapy, counseling, dental and orthodontic expenses, childcare costs, sporting activities (swimming, karate, ice hockey, ball hockey, baseball, gym), and a private residential school.
43The Father has properly set out, in his extensive affidavit materials, the expenses incurred for Justin since 2017. He has also provided the receipts for these expenses.
44The Mother does not dispute the section 7 expenses. She is grateful and appreciative for the Father’s efforts in taking care of Justin.
45I am satisfied that the evidence supports that the expenses have been incurred by the Father and that they are reasonable, necessary, and in Justin’s best interest. I conclude that the total section 7 expenses to be shared by the parties for 2017 up to the date of this motion are $35,731.00.
46The Mother’s proportionate share of the section 7 expenses cannot be determined until the issue of the imputation of income has been decided.
Is there a genuine issue for trial regarding the overpayment of child support to the Mother?
47The Father has overpaid child support to the Mother. There is no genuine issue for trial.
48Justin has been in the Father’s sole care since July 2017.
49The Mother only agreed to terminate child support in late 2017. On December 12, 2017, Justice Doyle ordered that payment of child support by the Father be terminated, without prejudice to his right of seeking the reimbursement of any overpayments retroactively to August 2017.
50From August to December 2017, the Father continued to pay child support to the Mother in the amount of $449.00 per month, for a total of $2,245.00.
51The Mother does not dispute that there has been an overpayment.
52The Father has established that the Mother’s owes him the sum of $2,245.00.
Is there a genuine issue for trial regarding imputing income to the Mother?
53I am unable to grant summary judgment on this issue. I require additional evidence before determining if there is a genuine issue for trial regarding the imputation of an annual income of $40,000.00 to the Mother, retroactive to July 2017.
54For several years, the Mother has not been earning a regular income. She has worked for two employers, either part-time or full-time, and she has received social assistance and employment insurance. According to the Mother’s documents, her income can be summarized as follows:
a. 2017 - $13,176.00 in social assistance from the City of Ottawa (T5007)
b. 2018 - $18,544.95 from Russel Metals Inc. (T4)
c. 2018 - $8,518.00 in social assistance from the City of Ottawa (T5007)
d. 2019 - $43,306.01 from Russel Metals Inc. (T4)
e. 2020 - $9,734.00 from Russel Metals Inc. (T4)
f. 2020 - $8,617.60 from Options Bytown Non-Profit Housing Corporation (T4)
g. 2020 - $13,672.00 in Employment Insurance from the Federal Government (T4E)
55The Mother argues that the income documents submitted represent the income that she earned from 2017 until present. In reference to her income for year 2019, the Mother says that this was an anomaly because she buried herself in her job, working numerous overtime hours.
56The Mother states that she is currently unable to work on a full-time basis. She relies on a note dated May 3, 2021 from her family physician, Dr. Brown. This note reads:
I am aware this lady is attending court on May 10 and wanted to update her information. Recently she has seen a psychiatrist at ROH who has made a new diagnosis of PTSD and feels this is her main psychiatric diagnosis. This is hard to treat and leads to a need to avoid stress by those affected. She has found understanding this diagnosis helpful. Unfortunately trauma related therapy is expensive and hard to access. She has been doing well at her current job in supporting housing working 18 hours a week. This job is fulfilling and she is a valued team member. I do not believe she could work over part time hours at this time. She has limited funds but is managing to balance her work, her health and her finances. I would not want her to place extra stress on herself at this time as I believe it would be detrimental to her health. Thanks for considering.
57The Father submits that the Mother has not provided any cogent medical evidence to satisfy the Court that her reasonable health needs justify her decision not to work.
58The Father is critical of the medical reports submitted by the Mother. The Father argues that Dr. Bakish’s report does not address the Mother’s ability to work. As for the family physician, Dr. Brown, the Father says that she provides little to no detail regarding the Mother, her medical condition, or her inability to work. The Father believes that Dr. Brown is biased and unqualified to make a mental health diagnosis or determine her ability to work.
59The Father seeks an adverse inference against the Mother due to her failure to provide disclosure. He claims that the disclosure provided by the Mother supports that she can earn at least $40,000.00 annually.
60The Father relies upon the decision of Sharma v. Sharma, 2018 ONSC 862 because he says that it is very similar to the Mother’s situation. In that case, the applicant brought a motion for summary judgment, seeking amongst other things, child support based on an imputed income of $250,000.00 per year. The respondent was seeking an adjournment. In refusing the adjournment, the Court found the respondent to have blameworthy conduct in the proceedings, describing it in this manner: “Instead he has acted as if he were not bound by the laws and rules of this jurisdiction. This behaviour was tactical and aimed to thwart the mother’s claims in Ontario”: at para. 30. The Court then concluded that the applicant should be entitled to her motion because: “It would be unfair to allow a litigant who has willfully and consistently failed to meet his obligations as a party to a proceeding for purely tactical reasons to profit from such conduct”: at para 32.
61I disagree with the Father that the respondent’s behaviour in the Sharma case is comparable to the Mother’s conduct. I do not find that the Mother’s failure to disclose her financial records is tactical or designed to frustrate the Father’s claim. Rather, as noted earlier, I believe that there are medical reasons that explain her conduct.
62I am of the view that the evidentiary record does not provide the necessary evidence to properly adjudicate the issue of the Mother’s income. While I recognize that the Mother has not met her evidentiary obligations on this summary judgment motion, I do not believe that she should be penalized for tendering a deficient evidentiary record. I do not find that the Mother’s failure in putting her best foot forward on this motion is intentional. Considering the Mother’s mental health and her unfamiliarity with the procedure to follow on a summary judgment motion, I believe that, in the interest of justice, the Mother should be afforded the opportunity to lead further evidence.
63To ensure that this matter is adjudicated fairly and equitably, I require clarification of the evidence regarding the Mother’s employment history, her medical condition, and her ability and/or inability to work on a full-time basis from 2017 to present.
64In my view, the mini-trial procedure that is set out in r. 16 (6.2) of the Rules will assist me in determining if there is a genuine issue requiring a trial. I find that, in the circumstances of this case, the mini-trial is an efficient, affordable, and proportionate process that will allow me to reach a fair and just income on all the evidence.
65Until such time as a determination has been made regarding the Mother’s income, I am unable to decide the Mother’s proportionate portion of the section 7 expenses or her child support obligations, from 2017 until present.
66Pending the mini-trial, and in Justin’s best interest, it is important for the Mother to be making some financial contribution to the Father. According to the materials, the Father is receiving monthly support payments in the amount of $300.00, enforced by the Family Responsibility Office. I believe that this is a reasonable amount until such time as the issue of the imputation of income is finalized.
Is there a genuine issue for trial regarding the Mother’s life insurance policy?
67I have no information regarding the Mother’s life insurance policy. Further evidence is required to determine if there is a genuine issue for trial regarding the designation of the Mother’s current insurance policy, if one exists, or whether she has the ability to secure a new life insurance policy, for Justin’s benefit.
68For similar reasons set out above regarding the imputation of income, I find that a mini-trial on this limited issue will assist me in deciding if a full trial is necessary. It is so ordered.
CONCLUSION
69In sum, I make the following Orders:
a. The section 7 expenses, up to the date of the Motion, are fixed at $35,731.00.
b. The overpayment of child support for the period of August to November 2017 is fixed at $2,245.00.
c. A mini-trial is directed on the issues of the imputation of income and designation of the life insurance policy. The trial coordinator’s office shall schedule a Trial Management Conference before me to discuss the required steps and process to be determined for the mini-trial.
d. Within 60 days of these Reasons for Decision, the Mother shall file and serve the Father with the following disclosure that remains outstanding:
i. Notices of Assessment from 2016 to 2020;
ii. Sworn Financial Statement;
iii. Recent paystubs;
iv. Confirmation as to whether she has received disability payments;
v. Proof of life insurance benefits available to her;
vi. Income from EI once receiving same; and
vii. All materials relating to her severance with her former employer, Russell Metals.
70The costs for this Motion are to be addressed after the conclusion of the mini-trial.
M. Smith J
Released: July 20, 2021
COURT FILE NO.: FC-15-1541
DATE: 2021-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Jean-Claude Robert Gagne, Applicant
AND
Jennifer Renee Isaacs, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Alice Weatherston, Counsel for the Applicant Self-represented, Respondent
REASONS FOR DECISION
Justice Marc Smith
Released: July 20, 2021