COURT FILE NO.: FS-16-85270-0001
DATE: November 4, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIS JOHN PONTIGON
Self-represented
Applicant/Responding Party
- and -
RENEE ROSE PONTIGON
Kimberly Wilmot, for the Respondent/Moving Party
Responding/Moving Party
HEARD: November 2, 2022
ENDORSEMENT
Mandhane J.
INTRODUCTION AND OVERVIEW
[1] The parties are married and have two children: A.P.P. (born May 8, 2010) and K.B.P. (born January 28, 2015). The parties separated on December 2, 2015.
[2] Between 2016 and 2018, the parties both engaged in high-conflict and expensive litigation. The Office of the Children's Lawyer was involved. There were multiple motions and two lengthy trials to determine, first, the parenting and support issues (before Ricchetti J.) and, second, the property issues (before Seppi J.).
[3] The trial before Ricchetti J. resulted in a "Final Order" dated March 9, 2018, ordering that:
• The Mother have sole custody;
• The Mother have primary residency and the Father have Wednesday evening and alternating weekend access;
• Parenting exchanges take place at school and/or at a MacDonald's in Brampton; and
• The Father pay monthly child support of $1,471 based on an imputed income of $100,000.
See: Pontigon v. Pontigon, 2018 ONSC 1445
[4] To say that the Father has fell short of his child support obligations would be an understatement. In less than five years, he has failed to support the children to the tune of $50,000.
[5] Sometime in 2021, the Family Responsibility Office commenced enforcement proceedings against the Father before the Superior Court of Justice in Barrie ("FRO Proceedings").
[6] On May 10, 2021, Jain J. adjourned the FRO Proceedings to allow the Father to file a motion to change the Final Order before this court. Jain J. made a temporary order that the Father pay 50% of his ongoing child support ($850/month) starting June 1, 2021.
[7] On or around December 30, 2021, the Father filed a Motion to Change with the Superior Court of Justice of Brampton. In the motion, he asks for an adjustment to the terms of the Final Order in relation to retroactive and ongoing child support.
[8] The Mother now brings a motion for relief under Rule 1(8) of the Family Law Rules, O. Reg. 114/99. She says that I should stay the Father's Motion to Change until he satisfies all outstanding costs orders.
[9] The Father opposes the Mother's motion for relief under Rule 1(8). He says that I should exercise my discretion under Rule 1(8) in his favour and allow the Motion to Change to proceed on the merits.
ISSUE
What is the proper remedy for the Father's failure to abide by court orders?
[10] Where a person fails to obey a court order, Rule 1(8) gives me broad discretion to make any order necessary to justly determine the matter. The Rule specifically contemplates ordering that a step in the case be postponed.
[11] The law under Rule 1(8) is helpfully summarized by Madsen J. in Herman v. Rathbone, 2017 ONSC 4585 at paras. 21-27.
[12] In Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. No. 486 (O.C.J.), Justice Spence set out a three-stage process for approaching Rule 1(8):
Is there a triggering event that would allow a consideration of Rule 1(8)?
Is it appropriate to exercise discretion in favour of the non-complying party? This discretion should be exercised only in "exceptional circumstances."
If discretion is not exercised in favour of the non-complying party, what is the appropriate remedy pursuant to the provisions of Rule 1(8)?
SHORT CONCLUSION
[13] After engaging in three-step process outlined in Ferguson, I am prepared to grant the relief sought by the Mother.
[14] The Father's Motion to Change is stayed pending satisfaction of the outstanding payment orders is an appropriate remedy in this case.
ANALYSIS
Has there been a "triggering event?"
[15] On the first stage of the analysis, there is no dispute that there has been a "triggering event."
[16] The Father admits that he is in breach of a number of court orders dating back to June 14, 2018 (hereinafter "Payment Orders"). The Father owes the Mother a total of $84,519.71 including applicable interest, as follows:
• June 14, 2018, Ricchetti J., $1000 (costs)
• July 4, 2018, Trimble J., $1000 (costs)
• August 8, 2018, Ricchetti J., $40,000 (costs)
• August 17, 2018, Seppi J., $7,143.60 (equalization)
• September 10, 2018, Seppi J., $26,000 (costs)
[17] The Payment Orders were never appealed, set aside, or changed.
Is this an exceptional circumstance such that I should exercise my discretion in favour of the Father?
[18] I refuse to exercise my discretion in favour of the Father.
[19] There is nothing exceptional about the Father's personal circumstances. The Father has been up-front that his Motion to Change will focus on Ricchetti J.'s imputation of $100,000 in annual income to him. The Father did not appeal the Final Order, and it was made after a contested trial and in the face of the Father's steadfast refusal to provide adequate financial disclosure. Even before me, there was no current information about the Father's income or ability to satisfy the outstanding Payment Orders before me because his last Financial Statement was sworn back on December 22, 2021.
[20] I also reject the Father's assertion that I should deny the Mother's relief because she has unclean hands. He says that the Mother denied him court-ordered parenting time during the pandemic and that she has relocated to Whitby without his consent. In relation to the Mother's denial of parenting time during the pandemic lockdowns, I accept that she has since offered the Father make-up parenting time and is willing to facilitate the same.
[21] Regarding the move to Whitby, the proper process would have been to pursue a motion opposing the relocation. Having failed to do so (despite being directed by Baltman J. to do so), and having himself previously moved to Innisfil, I refuse to exercise my discretion in favour of the Father on this basis.
[22] Finally, while I agree with the Father that aspects of his Motion to Change may impact the children, this does not persuade me that he is entitled to a hearing on the merits. His requested changes to parenting are modest. He asks for decision-making in some limited domains, and minor adjustments to the schedule for school-year parenting time. Indeed, from the Mother's submissions, I expect the parties will be able to resolve some of the logistical issues on consent (i.e. new exchange location). '
[23] On the other hand, the risk of harm to the children of ongoing litigation and associated uncertainty is clear and obvious: see Pontigon, paras. 53, 70, 115.
[24] Overall, the Father has not demonstrated that this is an exceptional circumstance such that I should exercise my discretion in his favour.
What is the appropriate remedy pursuant to the provisions of Rule 1(8)?
[25] The Mother's primary argument is that allowing the Father to proceed with his Motion of Change while in breach of the Payment Orders amounts to the court condoning an ongoing abuse of process. I agree.
[26] In fashioning the appropriate remedy under Rule 1(8), I can consider how to best protect the administration of justice in the face of a party that wilfully obeys an order: Hughes v. Hughes, 2007 CanLII 10905 (ONSC), 2007 CarswellOnt 1977. This is a critical consideration in the context of high conflict and toxic litigation like this.
[27] The Father has been enabled to pursue unreasonable, costly, and harmful litigation precisely because he has refused to pay costs. This has had a direct, obvious, and negative impact on this litigation. The Father is simply not incentivized to resolve matters in an expeditious manner that prioritizes the best interests of the children. The administration of justice has suffered: there has been excessive use of court time (including two lengthy, contested trials), a flouting of judicial orders (procedural and substantive), and lateral harm to the children.
[28] The relief sought by the Mother is appropriate in all the circumstances. The Father's Motion to Change is stayed pending payment in full of all outstanding Payment Orders, plus applicable interest, no later than December 31, 2022.
Should any of the Payment Orders be enforced by FRO as child support?
[29] The Mother asks for a further order that, in the event that the Father does not pay the outstanding Payment Orders by December 31, 2022, the Payment Orders be collectable in full lump sum by the Family Responsibility Office.
[30] The Mother sought and was denied the same substantive relief before Justice Fowler-Byrne on September 28, 2018. Justice Fowler-Byrne found that the Mother had not made the request in the first instance in her written submissions on costs to Ricchetti J., and that it would be inappropriate to vary a Final Order after the fact. I deny the relief for the same reasons.
NEXT STEPS
[31] The Father's Motion to Change is stayed pending payment in full of all outstanding Payment Orders, including both costs and equalization, no later than December 31, 2022.
[32] Upon filing proof of payment, the Father may bring a 14(b) motion, on notice and in writing, directed to my attention, for an order lifting the stay of his Motion to Change.
[33] The Mother shall provide a copy of this order to the Family Responsibility Office and shall also file it with the Superior Court of Justice-Family Division in Barrie.
COSTS
[34] The Mother is presumptively entitled to costs as the successful party. She shall serve and file her Bill of Costs and cost submissions (max 2 pages, double-spaced, 12-point font) on or before November 11, 2022.
[35] The Father shall serve and file his Bill of Costs, and response to the cost submissions (max 2 pages, double-spaced, 12-point font) on or before November 18, 2022. There shall be no reply submissions
Mandhane J.
Released: November 4, 2022
COURT FILE NO.: FS-16-85270-0001
DATE: November 4, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIS JOHN PONTIGON
Applicant
- and –
RENEE ROSE PONTIGON
Respondent
ENDORSEMENT
MANDHANE J.
Released: November 4, 2022