Citation

CITATION : G.(P.) v . R.(l.) , 2022 ONSC 1831

Court File and Parties

COURT FILE NO.: FS-20-0073 DATE: 2022/04/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

P.G. Applicant – and – L.R. Respondent

Counsel: Self-represented (for P.G.) D. Chohan for the Defendant (L.R.) E. Fitzpatrick, for the Office of the Children’s Lawyer J. Faria, Director of the Family Responsibility Office

HEARD: March 21, 2022

REASONS FOR DECISION

Ellies R.S.J.

Overview

[1] I have two motions before me. In one, Ms. R. seeks to strike Mr. G.’s pleadings for failing to comply with earlier support orders and an order requiring him to pay costs. In the other, Mr. G. seeks to vary a parenting schedule or, alternatively, seeks an order that the three children involved should reside primarily with him. He also seeks to vary the amount of child and spousal support he has been ordered to pay and an order that the Family Responsibility Office (“FRO”) refrain from suspending his driver’s license, among other things.

[2] For the following reasons, Mr. G.’s motions are dismissed, with one exception relating to spousal support. The motion with respect to that issue is adjourned for three months, to allow Mr. G. to reduce the arrears of child support, failing which his pleadings will be struck.

Family History

[3] Mr. G. and Ms. R. started living together in 2007. On July 5, 2010, they were blessed with twins. The girls are now 11 years old.

[4] The parties were married on December 6, 2013. Their youngest child, a boy, was born on March 1, 2016. He has just turned 6.

[5] Mr. G. and Ms. R. separated in May 2020. At the time, Ms. R. worked two days per week as a dental assistant at the Department of National Defense, where she had worked since 2010. Mr. G. worked underground as a gold miner in Kirkland Lake, which he had been doing since the parties began living together. As a gold miner, Mr. G. made good money.

Procedural History

[6] The parties brought competing motions regarding parenting of the children in October 2020. For reasons set out in an endorsement dated October 27, 2020 (G.(P.) v. R.(L.), 2020 ONSC 6570), Rivard J. found that Ms. R. was the primary caregiver of the children and that it was in their best interests that they continue to live with her. He ordered that Mr. G. have parenting time every second weekend from Friday after school to Monday after school. He further ordered that Mr. G. pay child support in the amount of $2,854.00 per month, based on his income at the time. Ms. R. has had primary care of the children ever since. That is not, however, for lack of effort on Mr. G.’s part.

[7] In June and September 2021, my colleague, Boucher J., heard a motion by Ms. R. for the immediate return of the children because Mr. G. had failed to return them as required. He also heard another competing motion by Mr. G. relating to parenting time.

[8] For reasons dated September 9, 2021 (G.(P.) v. R.(L.), 2021 ONSC 6570) Boucher J. found that the involvement of the Ontario Children’s Lawyer (“OCL”) subsequent to the October 2020 motions constituted a change in circumstances sufficient to vary Rivard J.’s earlier order and proceeded to conduct a thorough review of the parenting issues before him.

[9] Boucher J. increased the parenting time of Mr. G. by one day per weekend, to start on Thursdays after school, rather than on Fridays. He also ordered that Mr. G. pay increased child support in the amount of $3,586.00 per month, based on increased income. Boucher J. further ordered that Mr. G. pay spousal support in the amount of $935.00 per month, commencing July 1, 2021.

[10] However, Mr. G. paid neither the child nor the spousal support. Within about 20 days of Boucher J.’s September 9 reasons, Mr. G. notified Ms. R. that he was disabled and no longer able to afford to pay the support he had been ordered to pay for his family.

[11] A short while later, on October 22, 2021, Boucher J. also ordered Mr. G. to pay $7,000.00 in costs with respect to the September motions. That, too, has gone unpaid. According to Mr. G.’s March 9, 2022, financial statement, the arrears owing for child support exceed $35,000.00 and those owing for spousal support exceed $5,000.00. Including the costs award, the overall amount outstanding is over $48,000.00.

The Present Motions

[12] Mr. G. deposes that he is no longer able to work and that his income is only $2,500.00 a month by way of disability pension, about $1,100.00 of which is being garnisheed each month by FRO in satisfaction of his support obligations. He asks that the arrears be varied to stop as of September 28, 2021, the date he gave Ms. R. notice that he was unable to work. That would leave about $9,022.00 owing for child support and about $2,805.00 owing for spousal support.

[13] Mr. G. would also like his parenting time with the children increased either to three weekends a month, from Friday after school to Monday after school or, alternatively, week-about access.

[14] Finally, Mr. G. asks for an order under s. 36 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”), refraining FRO from suspending his driver’s license for failing to pay the support.

[15] I would not grant Mr. G. any of the relief requested, with one small and temporary exception, as I will now explain.

Issues

[16] As argued, these motions raise the following issues:

(1) Should Mr. G.’s pleadings be struck?

(2) If so:

(a) Should Mr. G. be given an opportunity to redeem himself and have his pleadings reinstated; or

(b) alternatively, should he be given an opportunity to participate in a trial limited only to issues regarding parenting?

(3) If not, should the court grant Mr. G.’s motion: (a) to vary parenting time; (b) to stay enforcement of the support order; and (c) to refrain FRO from suspending his license.

[17] Although I have set the issues out in the order in which they were addressed before me, I believe it is helpful in this case to deal with them in the opposite order, so that I may better explain the conclusion I have reached with respect to these motions.

Analysis

Varying Child and Spousal Support

[18] To put it plainly, I am not persuaded that Mr. G. cannot resume his former employment. Based on the evidence, I believe that Mr. G.’s claimed disability, like his request for more parenting time, is simply an attempt to avoid paying the respondent any support for his children. In reaching this conclusion, I rely on the following:

(1) Boucher J.’s observation that Mr. G. unilaterally reduced the amount of child support he was paying as early as May 2021 (see para. 43 of his reasons). Thus, he stopped paying about five months before he claimed to be unable to work.

(2) The fact that the onset of Mr. G.’s disability coincides so closely to the time at which he lost his motion before Justice Boucher.

(3) The absence of any medical evidence to support Mr. G.’s disability claim. Mr. G. asks me to infer that he must be disabled from the fact that he is currently in receipt of disability income. However, this evidence is insufficient to draw that inference. I know nothing of the contractual or medical basis upon which these payments were made.

(4) The fact that Mr. G. sold his home in Sturgeon Falls for what he said in oral argument was for $355,000.00 and failed to pay one penny of that money towards the arrears of child support he owed Ms. R..

(5) The fact that both of Mr. G.’s proposed new parenting schedules would increase his parenting time above the 40 percent threshold set out in s. 9 of the Child Support Guidelines, thereby reducing the amount of support he would pay. As I will explain when I address the parenting time issue, there is no material change upon which to base such a change. In the context of the issue of support, I note that, with respect to Mr. G.’s week-about proposal, he proposes to drive more than 40 minutes each way twice a day to take the children to school. This complete disregard for the loss of working time and the expense of gas associated with such travel shows the lengths to which Mr. G. will go to avoid paying support.

(6) Finally, the fact that, despite claiming to have no money, Mr. G. wanted to take the children on a vacation to Florida during which it was proposed they go on a Disney cruise. Mr. G. says that he had friends and family willing to pay for the cruise, but there is no evidence from anyone else to support this.

[19] For the foregoing reasons, I would not vary the child support obligations whatsoever.

[20] My conclusion regarding spousal support, however, is different. During argument, counsel for Ms. R. properly admitted that his client had just been made a full-time employee at her place of employment. This is a material change in circumstances, to which I will return later in my reasons.

Refraining Order

[21] Mr. G. seeks a Refraining Order under s. 35 of the FRSAEA. I agree with the submission made on behalf of the Director that such an order is not available until the support payor receives a first notice under s. 34 of the FRSAEA of the Director’s intention to suspend the payor’s driver’s license. There is no evidence that that has happened here.

[22] For this reason, Mr. G.’s motion cannot succeed.

Striking Pleadings

[23] Ms. R. moves to strike Mr. G.’s pleadings under r. 1(8) of the Family Law Rules, O. Reg 114/99. The relevant portion of this rule provides:

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 a just determination of the matter, including,

(c) 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…

[24] Counsel for Ms. R. correctly referred me to the three-part test set out in Van v. Palombi, 2017 ONSC 2492 (Div.Ct.) (at para. 30):

(1) Is there a triggering event justifying the striking of pleadings?

(2) Is it appropriate to strike the pleadings in the circumstances of the case?

(3) Are there other remedies in lieu of striking pleadings that might suffice?

[25] There is no doubt that Mr. G. has failed to honour the court orders referred to above and that there is, therefore, a triggering event. The real issue is whether it is appropriate to strike the pleadings or whether some other remedy will do. As counsel for Ms. R. submits, court orders are commands, not requests or suggestions. Consequently, non-compliance must have consequences: Gordon v. Starr.

[26] However, as counsel for Ms. R. also acknowledges, courts are very reluctant to strike pleadings in cases where children’s best interests are involved. In King v. Mongrain, 2009 ONCA 486, the Court of Appeal made it clear that striking out a parent’s pleading where a child’s best interests are at stake should only be done where the court can be certain that it will still have the information necessary to determine those interests. Speaking for the court in Mongrain, Gillese J.A. wrote, at para. 31:

[C]ourts should use the utmost caution in striking pleadings where children’s interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (Ont. C.A.). The reason for that admonition is simple - in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. Thus, while this court upheld the first instance decision to strike the pleadings of the husband in Faga, two things must be noted. First, the pleadings were largely about financial matters, although there were limited parts on custody and access. Second, and very significantly, as the court noted at para. 7 of its reasons, the Office of the Children’s Lawyer would represent the children’s interests in the proceedings. Accordingly, the court was assured that the information necessary to make custody and access decisions in the children’s best interests would be before it.

[27] Counsel for Ms. R. submits that, notwithstanding this admonition from the Court of Appeal, this is a case in which the pleadings of a parent should be struck. As Mr. Chohan correctly points out, this motion represents Mr. G.’s second attempt at varying Justice Rivard’s order, in a case where the costs of the first attempt remain unpaid. Mr. Chohan submits that, as in Faga, the children’s best interests will be advanced in this case by the OCL. As a result, he submits that Mr. G. should, at most, be given a limited right to participate at the trial regarding the issue of parenting time. Otherwise, his pleadings should be struck.

[28] With respect, I believe that striking Mr. G.’s pleadings at this point would be unfair. Ms. R. has recently experienced a material change in her circumstances that might affect the payment of spousal support. Striking Mr. G.’s pleadings now would have the effect of locking in the amount of support payable when the facts upon which that amount was set no longer exist.

[29] Instead, I believe that there may be a fairer solution to the problem of Mr. G.’s continuing disrespect for court orders and his failure to provide for his former family.

[30] Mr. G. has a lot of red ink on his ledger. Until that ledger is clear, it is hard to see how any court would be persuaded that this is not all “about the money” to him. I believe that Mr. G. should be given a short period of time to make efforts to retire all or substantially all of the arrears owing with respect to child support. If he does that, I believe that he should be permitted to participate in a motion to determine whether the quantum of spousal support should change as of the date Ms. R. gained full-time employment.

[31] For that reason, I propose to stay the spousal support order temporarily, without prejudice to Ms. R. to claim arrears at the present rate. As far as I can tell, this will not prejudice Ms. R. in any way because, at present, the $1,100.00 currently being garnisheed from Mr. G.’s monthly disability payments is not even covering his child support payments, let alone the spousal support.

[32] Therefore, the request to strike Mr. G.’s pleadings will be adjourned for approximately three months. The matter will be returned before me on June 24, 2022, at 2 p.m., or such other time as is arranged through the office of the trial coordinator. Mr. G. will be required to file affidavit evidence showing the payments that he has made, both through garnishment and in addition to garnishment, towards retiring the arrears in the interim. In the event that insufficient effort has been made on his part, Mr. G.’s pleadings will be struck, the court will go on to consider the amount of spousal support, if any, that should be paid by Mr. G. in light of Ms. R.’s changed financial circumstances without his participation, and the matter will ultimately proceed to an uncontested trial in which Mr. G. will be given limited rights to participate with respect only to the issue of parenting time. Mr. G. shall not bring any further motions in the interim without specific leave of this court.

[33] I would close by advising Mr. G. of one thing: these debts rarely go away. The enforcement mechanisms available for support orders rival, if not exceed, those available to enforce taxes. They include garnishment (as Mr. G. is now aware), diversion of income tax refunds, and the seizure and sale of real property (such as the new home Mr. G. has purchased in Sudbury). Therefore, Mr. G. is better served by showing that he cares enough about his children to work hard to support them, even if he has to pay that support to Ms. R. on their behalf.

[34] The issue of costs will be dealt with on June 24, 2022.

M.G. Ellies R.S.J.

Released: April 7, 2022