COURT FILE NO.: FS-20-20794
DATE: 20220913
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KYLE SANVICTORES Applicant
– and –
NANCY SANVICTORES Respondent
Lauri Daitchman, for the Applicant
Self-represented, Respondent
HEARD: June 23, 2022
M. D. FAIETA J.
Reasons for Decision
[1] The Applicant father bring this urgent motion for an order varying On the grounds that the Respondent mother is in breach of several Orders, the Applicant father brings this motion for the following order pursuant to Rule 1(8) of the Family Law Rules:
• An Order striking the Respondent mother’s pleadings.
• An Order permitting the Applicant father to proceed to an Uncontested Trial.
• An Order permitting the Applicant father to address any interim issues (including, but not limited to, summer parenting time and the release of the proceeds of the sale of the Rental Property), with the courts in the Respondent Mother’s absence.
• An Order that the Respondent mother is not entitled to any further notice of steps in this case in any way.
• An Order permitting this Court to deal with this case in the Respondent mother’s absence.
• An Order requiring the Respondent mother to pay costs to the Applicant father, on a full recovery basis, plus all applicable taxes.
BACKGROUND
[2] The parties were married in July 2012. Their two children of the marriage - ages 9 and 6. The parties separated in May 2020. Each of the parties allege that the other party was abusive and controlling during the marriage.
[3] The Application was issued on December 21, 2020.
[4] On April 9, 2021, a consent, without prejudice, temporary parent order was granted by Nakonechny J. whereby the Applicant father has the children for five of 14 overnights in a two week period.
[5] The parties have been before this Court on countless occasions over the last 18 months – largely, as will be shown below, as a consequence of the Respondent’s failure to comply with various Orders of this Court.
ANALYSIS
[6] Under Rule 1(8) of the Family Law Rules (“FLR”) this Court has the authority to make any order that it considers necessary for a just determination of a matter where a party has failed to obey an order including an order striking out an Answer.
[7] The primary objective of the FLR is to enable the court to deal with cases justly which includes (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (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: FLR, Rules 2(2), 2(3).
[8] The objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court: Purcaru v. Purcaru, 2010 ONCA 92, at para. 49. The remedy imposed should not go "beyond that which is necessary to express the court's disapproval of the conduct in issue: Marcoccia v. Marcoccia, 2008 ONCA 866, para. 14.
[9] Pleadings should only be struck and trial participation denied only in exceptional circumstances and where no other remedy would suffice: Purcaru, at para. 47; Martin v. Watts, 2020 ONCA 406, at para. 7; Horzempa v. Ablett, 2011 ONCA 633, para. 10.
[10] . Pleadings should not be struck if such a remedy leaves the court with insufficient information to make parenting decisions: King v. Mongrain, 2009 ONCA 486, at para. 36; Purcaru, paras. 48-49.
[11] In Martin, at paras. 24-25, the Ontario Court of Appeal stated:
24 The appellant must bear the consequences of his continued failure to comply with court orders; a consequence of which he had been repeatedly warned. The appellant’s failure to fully satisfy these outstanding orders, notwithstanding the many clear reminders, directions, and further generous opportunities to do so, can only be interpreted as his wilful disregard and flouting of the authority of the court. His failure to pay them and provide full and accurate financial disclosure caused further needless expense and delay and wasted judicial resources and those of the parties.
25 This conduct has no place in family law proceedings, which are designed to promote the most expedient and least costly resolution and adjudication of disputes in the very difficult context of matrimonial breakdown. Pointed and continued disregard for legislative and court-ordered obligations undermines the orderly administration of justice and erodes the legitimate expectation of litigants and the public that these obligations will be respected. At a certain point, a party’s non-compliance with his or her most fundamental obligations may result in the imposition of limits on that party’s rights to participate. That is the case here. By his repeated failures to meet his basic responsibilities, the appellant has forfeited his right to participate in these proceedings. [Emphasis added]
[12] The Respondent is in breach of numerous Orders.
Return of the Applicant’s Laptop and other property
[13] The Applicant is a self-employed television studio designer. He operates a business under the name AKA Creative Inc. The Applicant states that when he “escaped’ the marriage on May 2, 2020, the Respondent had hid all of his belongings because she did not want him to leave.
[14] Paragraph 3 of Justice Shore’s Order dated December 18, 2020 orders that the Respondent mother:
… shall immediately return to the Applicant Father the keys and security fob to his mother’s condo unit, his personal documents and personal property, including, but not limited to, his passport, his cell phones (x2), personal and business banking cards, social insurance card, immunization card, his laptops (x2), files, programs and software, etc., as well as his winter apparel and clothing.
[15] This Court has repeatedly found that the Respondent has not complied with the above Order. See: 1) Leiper J.’s Endorsement dated January 14, 2021, pages 2 and 3; 2) Pinto J.’s Endorsement dated September 24, 2021, paragraphs 15 and 19; 3) O’Brien J.’s Endorsement dated January 27, 2022, pages 6 and 7; 4) Faieta J.’s Reasons for Decision dated May 4, 2022, paras. 40-47; 5) Horkins J.’s Reasons for Decision, dated May 27, 2022, paras. 9-10. The Respondent has not adduced any satisfactory evidence to demonstrate that she has complied with paragraph 3 of the Order of Justice Shore.
Delivery of All Information, Passwords, etc.
[16] Paragraph 4 of Justice Pinto’s Order dated September 24, 2021 states:
The Respondent Mother shall immediately provide the Applicant Father with all information, passwords, logins, documents, and anything else required to allow him to access the following phone numbers and accounts: (a) 647-929-3019, (b) kyle_sanvictores@yahoo.com, (c) kyle@akacreativeinc.com, (d) http://www.akacreativeinc.com/ and any other websites associated with AKA including, but not limited to, all GoDaddy passwords, user IDs, and any other login information.
[49] The Respondent has not provided the Applicant with the passwords for AKA’s website and related GoDaddy accounts nor has she provided the Applicant with login information for two of his email accounts.
[22] This Court has repeatedly found that the Respondent has not complied with the above Order. See: 1) O’Brien J.’s Endorsement dated January 27, 2022, pages 6 and 7; 2) Pinto J’s Endorsement dated February 11, 2022, paragraphs 9-12; 3) Faieta J.’s Reasons for Decision dated May 4, 2022, paras. 48-51; 4) Horkins J.’s Reasons for Decision, dated May 27, 2022, paras. 9-10. The Respondent has not adduced any satisfactory evidence to demonstrate that she has complied with paragraph 4 of the Order of Justice Pinto.
Facetime Chats
[17] Paragraphs 10 and 11 of Justice Leiper’s Order dated January 14, 2021 state:
The children shall be able to communicate with both parents as and when they wish, and each parent shall facilitate the children contacting the other parent if the children request it.
Neither parent shall impede the children from texting, phoning, or FaceTimeing with the other parent.
[18] The Respondent has not complied with this Order. See: 1) O’Brien J.’s Endorsement dated January 27, 2022, pages 6 and 7; 2) Pinto J’s Endorsement dated February 11, 2022, paragraphs 18-22; 3) Faieta J.’s Reasons for Decision dated May 4, 2022, paras. 52-54; 4) Horkins J.’s Reasons for Decision, dated May 27, 2022, paras. 9-10. The Respondent has not adduced any satisfactory evidence to demonstrate that she has complied with paragraphs 10 and 11 of the Order of Justice Leiper.
Section 30 Assessment
[19] The Endorsement of Kraft J. dated June 25, 2021, states that despite previously agreeing to the involvement of the Office of the Children’s Lawyer (“OCL”), the Respondent mother withdrew her consent and withdrew her participation. The OCL filed a partial report under s. 112 of the Courts of Justice Act which could not be completed as a result of the mother's withdrawal from the process. In July 2021, the Respondent mother reinstated her consent for the involvement of the OCL. However, the OCL declined any further involvement.
[20] On January 27, 2022, the Applicant father brought a motion for an assessment pursuant to s. 30 of the Children’s Law Reform Act. O’Brien J. stated:
… The Applicant now seeks a s. 30 assessment on the basis that there is a great need for qualified third-party expertise to provide input with respect to the parenting issues in this case. The Respondent submits that the court should make an order for disclosure of additional CAS records and of all the Applicant’s clinical notes and records, as well as his OHIP claims history. She submits that after proper disclosure is provided, a judge can later order a voice of the child report if necessary. However, at various times during oral argument the Respondent also said she was not opposed to an assessment but should not have to fund it. …
For the reasons that follow, I find that a s. 30 assessment is appropriate in the circumstances of this case. The cost of the assessment shall be shared equally between the parties. …
[21] Amongst other things, O’Brien J. appointed Susan Lieberman to conduct a s. 30 assessment and report to the court and order the parties to cooperate with that assessment and to equally share the cost of that assessment and report.
[22] As of May 2022, the Respondent admits that she has not paid Ms. Lieberman her half of the retainer nor had she delivered the required intake paperwork to Ms. Lieberman. In June 2022, and only a days before the Applicant’s motion to strike the Respondent mother’s pleadings, the Respondent paid the court-ordered retainer and completed the intake forms for the section 30 assessment that had been ordered five months earlier
[23] Although she eventually paid her share of the retainer and completed an Intake Form for the Assessment, the Respondent has refused to book a session for her daughter. I find that such inaction amounts to non-compliance with the requirement under O’Brien J’s Order to cooperate with the assessment.
Enrolment in a Public School
[24] On April 5, 2022 Lococo J. ordered that the children attend a public school in September 2022 rather than remain at a private school as sought by the Respondent. The parties were ordered to sign all documents necessary to give effect to the children attending a public school. The Respondent has failed to complete all forms necessary to enroll the children in a public school for September 2022.
Sale of Rental Property
[25] The parties jointly own a condominium for investment purposes. They lease the condominium to third parties. The Respondent refused the Applicant’s request to list the condominium for sale on the open market. Instead, the Applicant the wanted to have the condominium sold to her mother for an undisclosed amount. On May 3, 2022, an order was granted that the condominium be listed for sale. The Respondent was ordered to provide the Applicant with the name and contact information of the persons who rent the condominium. The parties were also ordered to choose an arms-length realtor by May 6, 2022 in the event that the parties were unable to agree upon a realtor. The Respondent has failed to comply with both requirements. As a result, the Respondent has thwarted the sale of the property.
[26] On May 27, 2022, Horkins J. granted a further Order that dispenses with the Respondent’s consent on the sale of the condominium, requires the Respondent to provide the tenant’s contact information and prohibits the Respondent from interfering with the sale of the condominium. The Respondent has failed to provide the tenant’s contact information. She has also refused to provide the Applicant with a key to the condominium.
[27] In response to these Orders, the Respondent has notified the Court that her mother, a realtor, is refusing to permit the property to be listed for sale and that her mother will bring a lawsuit. The Respondent has told the Applicant’s agent that she will ask the Real Estate Commission of Ontario to revoke her licence if she lists the condominium for sale.
Outstanding Costs Orders
[28] The Respondent has failed to pay numerous costs orders:
• $17,000.00 in costs (Endorsement, Pinto J., February 7, 2022)
• $3,000.00 in costs (Endorsement, Pinto J. February 11, 2022)
• $12,000.00 in costs (Endorsement, O’Brien J., March 1, 2022)
• $2,500.00 in costs to be paid within 60 days (Endorsement, Lococo J., April 5, 2022)
[29] These costs orders remain unpaid even though the Respondent received a little more than $48,000.00 in September 2021 from the sale of a pre-construction property that the parties had purchased during the marriage. There is also about $4,000.00 being held in trust by the parties’ real estate lawyer.
Conclusions
[30] The Respondent has willfully disobeyed numerous Orders. Such behavior undermines the administration of justice and is antithetical to the primary objective of the Family Law Rules. Such behaviour undermines the rule of law, drains the Applicant’s financial resources particularly when costs orders are ignored and takes judicial resources away from other family law cases to deal with the urgent situations that arise from the Respondent’s failure to comply with Orders.. To make matters worse, the Respondent has been afforded more than one opportunity by this Court to comply with the Orders and has largely failed to do so.
[31] It appears that the Respondent, who has been self-represented since about February 2022, has adopted a scorched earth approach in this litigation in the expectation that the Applicant will run out of money. On May 19, 2022, the Respondent sent an email to counsel for the Applicant which states”
I won’t draw another image of the future forecast of this Case—but please use your imagination.…
Here are things that will not work in your favour for this Case:
-My parents are wealthy. I won’t need to make adjustments to the Children’s and My lifestyle during this time.
We are sticking to the Status Quo.
-I am Administrative
-I am determined to fight for Justice for my family
-I have endurance
[32] I find that this case is an exceptional circumstance where justice requires that the Respondent’s Answer be struck (other than in respect of her claim for parenting time) given that she has deliberately and persistently totally disregarded Orders of this Court: I find that it is just to strike the Respondent’s claim for decision-making responsibility in respect of the children as there will be sufficient information before the trial judge to decide this issue from the Applicant, the Children’s Aid Society, the section 30 assessor and the evidence filed by the Respondent to date in this proceeding. Ultimately, the trial judge may permit the Respondent to participate on this issue if the Judge determines that her evidence is necessary.
ORDER
[33] Order to go, pursuant to the Family Law Rules, as follows:
The Respondent’s Answer shall be struck other than in respect of her claim for parenting time as shown in paragraphs 3, 4, 6 and 7 of the Answer.
An uncontested trial shall be scheduled in respect of all the Applicant’s claims other than parenting time.
Subject to paragraph 4 below and the direction of the trial judge holding the uncontested trial, the Respondent mother is not entitled to notice of, nor to participate in, nor to initiate, any step in this case, other than a motion, a Trial Management Conference or a trial in respect of parenting time.
The Respondent shall not be entitled to participate in, nor initiate, any step in this case, nor shall the Respondent bring any motions unless she complied with all Orders of this Court, including all Orders issued after June 23, 2022.
The Applicant shall deliver his costs submissions, maximum three pages, and an outline of costs by September 21, 2022.
Mr. Justice M. D. Faieta
Released: September 13, 2022
COURT FILE NO.: FS-20-20794
DATE: 20220913
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KYLE SANVICTORES Applicant
– and –
NANCY SANVICTORES Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: September 13, 2022