Superior Court of Justice – Ontario – Family Court

NEWMARKET COURT FILE NO.: FC-19-58157-00 DATE: 2021-09-27

RE: Riccardo Orel Peart, Applicant AND: Vanessa Ladonna Brown, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: Applicant - Self-represented T. Cianfarani, Counsel for the Respondent

HEARD: September 27, 2021

Amended Endorsement

[1] The Settlement Conference was scheduled for today at 12:00 p.m. The Respondent filed her Brief late but with the consent of the Applicant. The Applicant did not file a Brief although he had with him an unsworn handwritten Brief that had not been provided to the Court.

[2] On July 7, 2021 a Motion was heard by Justice Jarvis with relief requested to strike the Applicant’s pleadings with respect to the issue of disclosure and support because the Applicant had failed to comply with three prior Orders of the Court. The Applicant was in attendance at the hearing of the Motion after apparently being served on or about June 11, 2021, by email. The Record indicates that the Applicant consulted with Duty Counsel, his request for an adjournment of the Motion was denied and that he had just received a Legal Aid Certificate but had yet to retain counsel.

[3] By August 31, 2021, the Applicant was to provide the Respondent with a properly completed and sworn Financial Statement, full copies of ITR’s for the years 2018-2020, NOA’s for those years upon receipt (with a notation that the NOA’s were unlikely to be received prior to today’s event, confirmation of new employment and three consecutive paystubs closest in date to August 31, 2021. He was to provide proof of any benefits available to him. Permission was granted to exchange Requests for Information with the requests being reasonable and proportionate to the issues pleaded. Of note, all disclosure issues were expected to be completed prior to the Settlement Conference. Child support of $359 monthly was to commence August 1, 2021 based on an estimated income of $40,000. Costs of $2,500 was awarded against the Applicant payable to LAO and costs was payable at the rate of $100 per month commencing October 15, 2021 and on the 15th of the month thereafter until paid in full. No SDO was issued regarding payment of costs.

[4] The Court directed the Applicant to take his tax information to an Accountant ASAP so that his ITR’s could be filed. The Court noted that the Respondent indicated that if the Applicant fails to comply with his Disclosure information, she may renew her Motion to strike the Applicant’s pleadings on all non-parenting matters returnable at the Settlement Conference (bold print added by me).

[5] Contrary to the bold print, the Respondent served the Applicant with a Motion returnable at 9:30 a.m. this morning. No responding material was served by the Applicant. He has also not responded to the Respondent’s Request for Information served on July 26, 2021. He has made no Request for Information from the Respondent. The Applicant indicates that he spoke with the same Duty Counsel last Friday. He attempted to gain entry to the Zoom invite at 11:45 a.m. without success and he was told that Court would convene at 12 noon. His efforts were confirmed by the Registrar in the other courtroom where the Motion was heard. Earlier this morning, Justice Sosna granted the Motion and struck the Applicant’s pleadings in any claims in relation to child support, permitting the Respondent to proceed by way of an Uncontested Trial. Costs of $1,000 was awarded to the Respondent, payable to LAO. No SDO was issued regarding payment of costs.

[6] On July 7, 2021, Justice Jarvis accepted the Applicant’s apology for not having filed the require documentation with the Court. Today, Mr. Peart also apologized to this Court. Whereas the apology seemed genuine, it appears that Mr. Peart fails to appreciate the significance of his failure to not comply with Court Orders and the rules of the Court respecting disclosure. Today’s Settlement Conference is the only such event to be allocated to this case. The parties separated in 2018 and it is time for this case to resolve or proceed to trial. Mr. Peart has to appreciate that the court system does not and cannot operate efficiently without compliance with its procedures. Today, he wished to provide me with evidence in support of his position. The difficulty is that parties and the court are entitled to have knowledge of that position, in writing, served before the event to enable responses to be formulated.

[7] The Respondent requires basic financial disclosure from the Applicant. When he indicates that he paid voluntary support prior to being ordered to pay support, although that may be correct, the Respondent has absolutely no way of knowing if that voluntary support was paid pursuant to the Child Support Guidelines because she has no information as to the Applicant’s income.

[8] OTG: The Applicant shall respond to the Respondent’s Request for Information by January 31, 2022. If information requested is unavailable, the Applicant shall provide a sworn affidavit to the Respondent with an explanation as to why the information cannot be provided and his efforts to obtain it.

[9] I have recommended to the parties that they utilize a Request to Admit following receipt of their Responses to the Request for Information.

[10] Notwithstanding the absence of any documents that could be of assistance to this case today, under the circumstances, on my own volition, I am setting aside the earlier Order of Justice Sosna pursuant to Rule 25(19) (e) which enables the court to change an Order that was made with notice as the Applicant was not present when the Order was made because he was unable, for a reason satisfactory to the court, to be present. I appreciate that the Applicant was properly served with the motion. It is possible that he attempted to walk in his responding materials to the court office, as he indicates, and that the documents were mistakenly not accepted. I am also mindful that Justice Jarvis’ Endorsement indicated that the Respondent may renew her Motion to strike the Applicant’s pleadings at the Settlement Conference. In fact, her motion was not returnable at the Settlement Conference. The Applicant did attempt to gain entry to the motion, by Zoom, albeit at 11:45 a.m. and not at 9:30 a.m. when the motion was returnable. If I do not grant this Order, I am obliged to adjourn today’s event to enable the Applicant to bring the motion which will only contribute to further delay in this matter.

[11] It is also not helpful to the Respondent to strike the Applicant’s pleadings. She needs his disclosure to be able to determine her litigation strategy and to enable her to deliver an Offer to settle the financial issues. However, this comment is not designed to provide the Applicant a further licence to delay this matter or avoid compliance with Court Orders.

[12] The Trial Management Conference (TMC) will be scheduled for April 28, 2022 at 2:00 p.m. For the TMC, the parties shall have exchanged and filed the following information:

(a) the parties shall exchange their respective Trial Scheduling Endorsement Forms (TSEF). The Respondent shall deliver to the Applicant her proposed TSEF by March 30, 2022. The Applicant shall complete those parts of the TSEF that pertain to his case and remit to the Respondent’s lawyer by April 6, 2022. The Respondent shall then complete the balance (such as time required for cross-examination) by April 13, 2022. All Parts of the TSEF must be completed. Those about which there is a dispute between the parties can be left blank for discussion with, and completion by, the court at the TMC;

(b) the Respondent shall append the TSEF to her Form 17C when confirming the TMC event. The TSEF shall be in WORD format;

(c) the parties will file revised, sworn Financial Statements by April 18, 2022. Proof of income for 2021 and any attachments filed or to be filed with the ITR’s are to be attached;

(d) the Respondent shall file the Trial Record prior to the TMC;

(e) the goal of the foregoing is to get this case trial-ready for the May 2022 sittings; and

(f) the parties should ensure that they exchange as soon as possible a FLR 18-compliant Offer to Settle and consider the merits of severable provisions.

[13] OTG: The Applicant shall forthwith complete and file a completed Form 35.1 Affidavit indicating all individuals residing in his residence. A copy of the document can be accessed below.[^1]

[14] OTG: The Applicant shall forthwith obtain a letter from his employer Mill Street Brew confirming that employees do not receive or have the ability of participating in any form of extended health care insurance.

[15] OTG: The Applicant will provide a letter from his employer detailing the method by which gratuities are paid to employees. Is there an average? Are gratuities pooled amongst servers and cooks? What was the amount received pre-Covid? What was the amount received during Covid? What was the amount received since reopening when the pandemic was thought to be under control? This letter is to be sent by the Applicant as drafted by the Respondent’s counsel to ensure that full information is received. The Applicant is also to identify the name of the individual to be contacted and the position held by that individual.

[16] OTG: The Applicant shall ask his girlfriend if she will voluntarily submit to Questioning regarding their financial involvement in RnC Kitchen and the partnership catering business including production of all bank accounts that the Applicant advertises on his social media account. If the response is negative, the Respondent has leave to bring a Motion on notice to both the Applicant and his girlfriend to have her submit to Questioning without which it may well be unfair for the Respondent to proceed to trial. The motion may be brought by 14B in view of the current lack of readily available motion days. The Applicant and/or his girlfriend shall have seven days in which to reply. The 14B motion may be brought before any Judge in Newmarket other than me as I have provided my opinion regarding this motion.

[17] Discussion regarding parenting time being exercised without the benefit of a written agreement or Court Order. Generally speaking, the Respondent attempts to accommodate the Applicant’s work schedule. There have been occasions where the agreed upon times are not met but the parties need to have some flexibility in consideration of the fact that the Applicant travels to Richmond Hill from downtown Toronto by Go Train.

[18] Further discussions regarding the Respondent’s request for the Applicant’s address where the child resides when with him. That address has now been provided. OTG: If the Respondent has occasion to pick up or drop off the child at the Applicant’s residence, she shall enter the driveway of his condominium building but shall not depart her vehicle or engage with the Applicant.

[19] Discussions regarding parenting time. The court does not have the benefit of information from the Applicant on this issue as he has not filed any documents that would be of assistance.

[20] On consent, the Applicant shall have temporary parenting time with his daughter as follows and on the following terms:

1. The child’s primary residence shall be with the Respondent, subject to her day-to-day care and control.

2. If the child needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency.

3. The Respondent will keep the child’s government issued documents, including the child’s Social Insurance Number, passport, health card and vaccination records, and will provide the Applicant with photocopies. If the Applicant requires the original copy of a government issued document, the Applicant shall provide the Respondent with details why the document is needed, in writing. If the Respondent provides the Applicant with the document, the Applicant shall return the government issued document to the Respondent within twenty-four (24 hrs) hours.

4. The Applicant shall have parenting time every alternate Friday after school at 6:00 p.m.to Sunday evening at 6:00 p.m. If the Friday is the PA/PD day, then the parenting time shall be from Thursday at 6:00p.m. to Sunday evening at 6:00 p.m. If the Monday is a PA/PD day, then the parenting time shall be from Friday at 6:00 p.m. to Monday evening at 6:00 p.m. provided that if the Applicant is unable to have the child for the extra day coinciding with her PA/PD day, he shall provide the Respondent with a minimum of 72 hours notice to enable her to make other plans for the child.

5. Every Father’s Day, if the child is not otherwise with the Applicant, from Saturday evening at 6:00 p.m. until Sunday at 7:00 p.m. However, if the child is with the Applicant on Mother’s Day weekend, the child shall be returned to the Respondent at 7:00 p.m. on the evening prior to Mother’s Day.

6. In 2021, the Respondent will have parenting time with the child on Christmas Eve, December 24th, from 12:00 p.m. (noon) to Christmas Day, December 25th at 12:00 p.m. (noon). The Applicant will have parenting time with the child on Christmas Day at 12:00 p.m. (noon) to Boxing Day at 5:00 p.m.

7. In 2021, the Respondent will have parenting time with the child on New Year’s Eve, December 31st, from 12:00 p.m. (noon) to New Year’s Day, January 1 at 12:00 p.m. (noon). The Applicant will have parenting time with the child on New Year’s Day at 12:00 p.m. (noon) to January 2 at 6:00 p.m.

8. In 2022 Easter weekend, the Applicant shall have the child from Thursday evening at 6:00 p.m. until Saturday evening at 6:00pm.

9. At all times the Applicant shall provide the Respondent with a minimum of 72 hours written notice if he is unable to exercise his parenting time. If he does not, he shall reimburse the Respondent for any childcare expenses she incurs as a result of this deficient notice.

10. At all times if the Applicant is going to be late in picking up or returning the child on his parenting time, he shall notify the Respondent in writing. Copies of these written exchanges shall be preserved for future judicial scrutiny.

11. The parties shall maintain flexibility with one another regarding any reasonable changes to the parenting schedule to enable the child to enjoy maximum experiences with both sides of her family.

[21] The parties are encouraged to continue to exchange Offers to Settle in an attempt to resolve or narrow the outstanding issues between them. They are also encouraged to arrange mediation with York Hills on an offsite basis in an attempt to resolve their parenting schedule on a year round basis.

[22] Lengthy discussion with the parties regarding Decision Making (formerly custody). They should appreciate that in real life, if the child has an issue regarding her health, it is customary to follow the recommendations of the child’s physician. Similarly, if there are school-related problems, it is customary to follow the recommendations of the school personnel. Both parties are entitled to receive information from the physician, dentist and schoolteachers and other school personnel regarding the child. It is this information that should serve as the basis for their Decision-Making. Ultimately, absent an agreement between the parties and after written consultation, it is likely that one parent shall be entrusted to make decisions for the child consistent with her best interests.

[23] Although I have set aside Justice Sosna’s Order regarding striking of pleadings, I am leaving his costs award in place. The Applicant had notice of the event and did not file material. Similarly, he filed nothing for the scheduled Settlement Conference which precluded meaningful settlement discussions. For that, the Respondent shall receive an additional $250 payable to Legal Aid Ontario. The total sum of $1,250 shall be paid in full by April 1, 2022. I recognize that the Applicant has a monthly obligation to discharge the costs awarded by Justice Jarvis. Under the circumstances, and in light of the repeated behaviour in not complying with the filing requirements of the court, a similar indulgence is not warranted but the extra time will allow the Applicant to accumulate the required funds.

[24] If the Applicant does not file what is required for the TMC, it is highly unlikely that he will be allowed to participate in the event.

Justice R. Kaufman

Date: September 27, 2021

[^1]: Form 35.1 attachment deleted due to personal information.