INDEX

NATURE OF THE MOTIONS

BACKGROUND FACTS

• Marriage and separation

• Company’s receivership: Nov 23, 2011

• Mr. Kalair’s 1^st lawyer, Haig DeRusha: 2011

o Minutes of Settlement: Jan. 11, 2013

o Mr. Kalair’s motor vehicle accident: March 2013

o Final Order for parenting and support: Apr 26, 2013

o Enforcement proceeding by FRO: June 10, 2014

o Mr. Kalair’s 1^st Motion to Change: March 3, 2015

• Mr. Kalair’s 2^nd lawyer, Samir Patel: July 13, 2015

o Enforcement Order: July 21, 2015

o Interim motion to vary final support: Sept 11, 2015

o Mr. Kalair’s Rowbotham application: Oct 5, 2015

o Case Conference: Nov. 24, 2015

o Mr. Kalair’s motion to suspend enforcement: Jan 14, 2016

o 1^st Settlement Conference: May 12, 2016

o 1^st Trial Management Conference: Feb 24, 2017

o Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: March 2017

• Mr. Kalair’s 3^rd lawyer, Ken Wise: Oct 23, 2017

o Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: March 2017

o 2^nd adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: Nov 14, 2018

o Ongoing enforcement proceeding: Dec 11, 2018

• Mr. Kalair’s 4^th lawyer, Richard Forget: Dec 28, 2018

o 3^rd adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: Dec 28, 2018

o 2^nd Trial Management Conference: Feb. 1, 2019

• Mr. Kalair’s 5^th lawyer, Emily Banks: Mar 19, 2019

o 1^st Adjournment of the trial of Mr. Kalair’s Motion to Change: June 2019

o 2^nd Adjournment of trial of Mr. Kalair’s Motion to Change: Aug 9, 2019

o Request for Case Management: Sept 2019

o Mr. Kalair’s 2^nd Motion to Change: Oct 25, 2019

• Mr. Kalair’s 6^th lawyer, Riddhi Agarwal: Nov 2019

o 3^rd Trial Management Conference: Feb 25, 2020

o Suspension of Court operations: March 15, 2020

o 2^nd Request for Case Management: Oct 9, 2020

o 3^rd Adjournment of trial of Mr. Kalair’s Motion to Change: Oct 13, 2020

o 4^th Trial Management Conference: March 8, 2021

o Appointment of OCL Clinician: March 11, 2021

o 4^th Trial Management Conference: June 16, 2021

o 1^st adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change: July 23, 2021

o 2^nd adjournment of Ms. Kabir’s motion: Sept. 29, 2021

• Mr. Kalair’s 7^th lawyer, Roger Rowe: Dec. 12, 2021

o Mr. Kalair’s contempt motion: Sept. 29, 2021, for hearing June 13, 2022

o Removal of Mr. Rowe as Mr. Kalair’s lawyer: June 13, 2022

o 3^rd adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s contempt motion: June 13, 2022

o Mr. Kalair’s request for 4^th adjournment of Ms. Kabir’s motion to dismiss his Motions to Change: Sept. 28, 2022

ISSUES

a. Should Mr. Kalair be granted a further adjournment?

b. Should Mr. Kalair’s Motions to Change be struck out?

c. Should Ms. Kabir be found in contempt?

POSITIONS OF THE PARTIES

a. Should Mr. Kalair be granted a further adjournment?

i. Mr. Kalair’s position

ii. Ms. Kabir’s position

b. Should Mr. Kalair’s Motions to Change be struck out?

i. Mr. Kalair’s position

ii. Ms. Kabir’s position

c. Should Ms. Kabir be found in contempt?

i. Mr. Kalair’s position

ii. Ms. Kabir’s position

ANALYSIS AND EVIDENCE

a. Should Mr. Kalair be granted a further adjournment?

i. Legal framework

ii. Applying the legal principles to the facts

b. Should Mr. Kalair’s Motions to Change be struck out?

i. General principles applying to motions to dismiss Motions to Change based on non-compliance

ii. Legal test on motion to strike pleading / dismiss Motion to Change

a) The triggering event

b) Is dismissing the Motions an appropriate remedy?

(i) Extent and persistence of the non-compliance

(ii) Did Mr. Kalair make reasonable efforts to comply or provided acceptable explanations for his breaches

(iii) Is striking Mr. Kalair’s Motions to Change proportionate to the issues and to his conduct?

c) Other Remedies in Lieu of Striking Pleadings

c. Should Ms. Kabir be found in contempt?

i. Legal framework

ii. Applying the legal principles to the facts

CONCLUSION AND ORDER

____________________________________________________________

NATURE OF MOTIONS

[1] The Applicant, Muhammad Omar Farooq Kalair (“Mr. Kalair”), makes two Motions to Change the final Order of this Court, made on consent on April 26, 2013 (“the final Order”). He seeks to change his support obligations under the Order based on injuries he sustained in a motor vehicle collision a month before the Order was made, and he seeks to change the parenting terms of the Order to impose a parenting schedule on the parties’ youngest two children, in the face of their repeated refusal, owing to his conduct, to have parenting time with him.

[2] The Respondent, Syma Dahrakshan Kabir (“Ms. Kabir”), moves to dismiss Mr. Kalair’s motions on the ground that he has not complied with the support terms of the final Order, and multiple orders for financial disclosure and costs. Kumaranayake J. made a final consent Order on February 1, 2018, reducing Mr. Kalair’s support obligations to reflect the disability benefits he has received since sustaining his injuries in the motor vehicle collision, and Mr. Kalair relies on the diversion that was made of a portion of those benefits, which diversions he characterizes as voluntary payments that complied with Kumaranayake J.’s Order.

[3] Ms. Kabir notes that under the FOAEA Act, diversions are a form of enforcement by garnishment: Pucaru aka Vacaru v. Purcaru, 2019 ONSC 1205, per Kitely J., at para. 20(c). She submits that it was only because Mr. Kalair failed to comply with Kumaranayake J.’s consent Order for reduced child support, that the FRO garnished his ODSP benefits.

[4] Mr. Kalair cross-motions to have Ms. Kabir found in contempt of the parenting terms of the final Order made by Kumaranayake J. on February 1, 2018. He relies on the fact that he has not had the parenting time that Order provided for. Ms. Kabir submits that she has employed all reasonable measures to facilitate Mr. Kalair’s parenting. The Children’s Lawyer, in two successive Voice of the Child Reports, confirms that the children have consistently refused, with reason, to submit to the parenting schedule. The children justify their refusal based on the way their father has treated them in the past, especially, after entering into a relationship with a new partner and having a child with her. They say that he gives preferential treatment to that child at their expense, and mistreats them for not conforming to what he considers to be the appropriate dress and behaviour of a Muslim girl.

[5] On September 28, 2022, I heard the following motions together:

• Ms. Kabir’s motion to strike Mr. Kalair’s Motions to Change

• Mr. Kalair’s motion to have Ms. Kabir found in contempt

[6] Mr. Kalair requested an adjournment of the hearing. The Court heard argument and reserved judgment. For the following reasons, Mr. Kalair’s request for adjournment is denied, his motions are struck out, and his motion to have Ms. Kabir found in contempt is dismissed.

BACKGROUND FACTS

[7] Both Mr. Kalair’s request for a further adjournment of these motions and Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change on the ground of non-compliance with past orders require the Court to consider the circumstances in which the past orders were made and not complied with as well as the past delays in the proceeding and their cause. It is, therefore, necessary to review in some detail the procedural history of Mr. Kalair’s Motions to Change, which extends over almost a decade, to contextualize the Court’s reasons.

[8] Because Mr. Kalair bases his request for adjournment on his wish to retain new counsel, I am including in the procedural history the sequence of lawyers he has retained to represent him.

Marriage and separation

[9] Mr. Kalair and Ms. Kabir were married on October 3, 1998. They separated after 12 years, on June 1, 2010.

[10] There are three children of the marriage:

• I.A.I.K.: 22-year-old son

• H.K.B.K.: 19-year-old daughter

• H.I.B.K.: 13-year-old daughter

Mr. Kalair moves to have Ms. Kabir found in contempt of the parenting order only as it pertains to the youngest two children.

Mr. Kalair’s company’s receivership: Nov. 23, 2011

[11] At the hearing of these motions on September 28, 2022, Mr. Kalair tendered the endorsement of Trotter J. dated October 5, 2015. The endorsement recited the following facts:

a. Mr. Kalair operated two Toronto-based companies specializing in home mortgage financing arrangements compliant with Islamic Sharia law. The main secured creditor of the two companies was Central 1 Credit Union. In March 2011, Central 1 was owed $31 million and applied to this Court to appoint a Receiver/Manager over the affairs of the two companies. On October 6, 2011, Grant Thornton LLP was appointed as Receiver of the two companies’ assets and on November 23, 2011, it filed an assignment in bankruptcy.

b. Over the ensuing months, Mr. Kalair submitted to examinations under the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (“BIA”). He was later charged with two counts of theft over $5,000 (Criminal Code, R.S.C., 1985, c. C-46, s. 334) and two counts of fraud over $5,000 (Criminal Code, s. 380), fraudulent disposition of a bankrupt’s property (BIA, s. 198(1)), failure to comply with duties of a bankrupt (BIA, s. 198(2)), and failure to answer fully and truthfully all questions put to a bankrupt at an examination (BIA, s. 198(1)(b)).

c. The charges alleged that the debtor companies received more than $3.4 million from various mortgagors/homeowners but failed to remit some of these monies to Central 1. It is also alleged that some of these funds were comingled with the funds of the debtor companies and used to purchase silver coins. This occurred as the debtor companies defended the receivership application. Shortly after this transaction, Mr. Kalair made further purchases of gold bars, silver bars, and silver coins. While the silver was subsequently recovered, 32 kilograms of gold valued at $1.8 million was not returned and had reportedly been given to Muslim scholars in Egypt.

Mr. Kalair’s 1^st lawyer, Haig DeRusha: 2011

[12] Mr. Kalair retained his first lawyer, Haig DeRusha, to represent him in an application to resolve the issues arising from the parties’ separation. Mr. DeRusha represented Mr. Kalair from 2011 until the parties signed final Minutes of Settlement and Trust Agreement on January 11, 2013.

Minutes of Settlement and Trust Agreement: Jan. 11, 2013

[13] The Minutes of Settlement and Trust Agreement were intended to settle, fully and finally:

• Custody of the parties’ children

• Access to the parties’ children

• Child support

• Spousal support

• Division of property

Mr. Kalair’s motor vehicle collision: March 2013

[14] In March 2013, Mr. Kalair was in a car accident in which he suffered injuries, including neck pain and carpel tunnel syndrome in both wrists. He applied for, and was granted, Ontario Disability Support Plan (“ODSP”) benefits. Those benefits amounted to just under $700.00 per month when the Order was made. They now amount to $1,161.00 per month.

[15] Mr. Kalair states that because of his injuries, he could no longer afford to retain Mr. DeRusha privately. Mr. DeRusha obtained an Order removing him from the record as Mr. Kalair’s lawyer on April 16, 2013.

[16] In Mr. Kalair’s affidavit dated February 10, 2020, he stated that he worked as an employee of Zero Mortgage Canada Corporation in 2012 but was unable to provide documentation because the corporation stopped operating in 2014. Ms. Kabir disputes Mr. Kalair’s assertions and produced documentation supporting a conclusion that he continues to operate the company. In particular, she produced the following in her affidavit dated September 9, 2021:

• An excerpt from “Canada’s Business Registries” listing Zero Mortgage Canada Corporation as still active;

• A search of Who’s Who dated October 19, 2018, which shows a website, “zeromortgage.ca”, listing Omar Kalair as administrative contact and technical contact. The registrant’s name for the website was "UM Financial Inc.", a company owned by Mr. Kalair;

• A March 19, 2021, article entitled, “Zero Mortgage Final Fatwa” from a prominent website, Darul Iftaa Mahmudiyyah, focusing on Islamic finance and commerce, which names Omar Kalair as Zero Mortgage’s management;

• Advertisements for Zero Mortgage that Mr. Kalair sent to his daughter, H.I.B.K., on July 30, 2021, by means of the WhatsApp messaging application.

Final Order for parenting and support: April 26, 2013

[17] Ms. Kabir made a motion to strike Mr. Kalair’s pleadings on the ground that he had failed to comply with an Order made by Tzimas J. on April 9, 2013, requiring him to give financial disclosure to Ms. Kabir. Mr. Kalair did not respond to the motion. On April 26, 2013, this Court made a Final Order (the “Final Order”) based on the parties’ Minutes of Settlement and Trust Agreement, signed three months earlier. Mr. Kalair was communicating with Ms. Kabir’s lawyer from Saudi Arabia and had consented to the Court’s Final Order which contained the following terms:

(a) Ms. Kabir was to have sole custody (decision making responsibility) of the three children;

(b) Mr. Kalair was to have access (parenting time), as agreed upon by the parties, to the three children;

(c) Mr. Kalair was to pay child support of $858.00 per month and spousal support of $217.00 per month, based on deemed income of $45,000.00 per year;

(d) In satisfaction of the equalization payment that Mr. Kalair owed to Ms. Kabir, the net proceeds of sale of the matrimonial home would be paid to Ms. Kabir, who would retain half for herself and deposit the other half, amounting to $226,882.70, into the Kalair Children Trust, for the benefit of the parties’ children.

(e) The trust fund would be administered by Ms. Kabir, as primary trustee, and Atif Kabir, as secondary trustee, and would be used for the children’s education, their marriages, or for “secondary purposes” to be determined by Ms. Kabir.

[18] Mr. Kalair alleges that he did not receive notice of Ms. Kabir’s motion to enforce Tzimas J.’s disclosure order, or of the hearing at which the final Order was made. However, he does not dispute that the final Order was based on the parties’ final Minutes of Settlement and Trust Agreement, signed three months earlier. This Court’s endorsement dated April 26, 2013, discloses that on that day, Mr. Kalair, in Saudi Arabia, sent a scanned copy of the signed Minutes of Settlement to Ms. Kabir’s lawyer, Mr. Baxi, which Mr. Baxi submitted to the Court.

Enforcement proceeding by FRO: June 10, 2014

[19] On June 10, 2014, the Family Responsibility Office (“FRO”) moved to enforce the final Order dated April 26, 2013.

1^st Motion to Change the final order: March 3, 2015

[20] On March 3, 2015, Mr. Kalair made a motion to change the final Order made two years earlier. In his motion, Mr. Kalair asked that his spousal support obligation be terminated and that his child support obligation be terminated or reduced. Ms. Kabir filed a Response to the Motion to Change on April 10, 2015.

Mr. Kalair’s 2^nd lawyer, Samir Patel: July 13, 2015

[21] On July 13, 2015, Mr. Kalair filed a Notice of Change of Representation dated June 2, 2015, appointing Samir Patel to represent him.

Mr. Kalair’s Motion for temporary change of his support obligations: June 2, 2015

[22] On the same date, Mr. Kalair filed his Notice of Motion for a temporary change of his support obligations pending the hearing of his Motion to Change, and his supporting affidavit.

Enforcement Order: July 21, 2015

[23] On the fifth court appearance in the FRO’s enforcement proceeding, in which Mr. Patel was now representing Mr. Kalair, Parent J. made a consent Order dated July 21, 2015. The Order required Mr. Kalair to pay $625.00 per month toward his child support obligations, failing which he would be incarcerated for 3 days for each payment missed.

[24] Pending a decision on Mr. Kalair’s motion for a temporary variation of the final Order, which had been heard on July 20, 2015, with judgment reserved, Parent J. adjourned the enforcement proceeding to December 15, 2015. On the resumption of that proceeding on January 14, 2016, MacKenzie J. dismissed Mr. Kalair’s motion to suspend enforcement, with costs of $750.00 to be paid by him to Ms. Kabir.

Interim motion to varying final Order for support: Sept 11, 2015

[25] Mr. Patel made a motion on Mr. Kalair’s behalf for an interim order reducing his support obligations. Ms. Kabir made a cross-motion for an order striking Mr. Kalair’s pleadings in his Motion to Change.

[26] At a long motion on September 11, 2015, Lemon J. dismissed both motions, ordering Mr. Kalair to pay Ms. Kabir’s costs of the motion in the amount of $750.00.

[27] In his affidavit from October 5, 2018, Mr. Kalair stated, at para. 4, that Mr. Patel made numerous errors and that, in representing him for a long motion, Mr. Patel failed to provide Mr. Kalair’s updated financial information. He says that Mr. Patel never asked him for his tax return before the long motion. He adds that Legal Aid Ontario (“LAO”) also had issues with him, refused to pay his bill, and stopped funding his Legal Aid Certificate.

[28] Mr. Kalair blames Ms. Kabir for delay at that point, saying that the parties had a four-way mediation at Mr. Patel’s office and that Mr. Patel then arranged a mediation with Peel Mediation Services but Ms. Kabir, after initially agreeing to participate in the mediation, continued with the court process.

Mr. Kalair’s Rowbotham application: Oct 5, 2015

[29] On October 5, 2015, Mr. Kalair successfully applied to Trotter J. for a Rowbotham Order (for a publicly funded lawyer). Trotter J.’s Order temporarily stayed the Criminal Code and BIA charges against Mr. Kalair until the Crown could arrange funding of counsel to represent him in those proceedings.

[30] Trotter J. based his Order on Mr. Kalair’s medical documentation, which he said supported the injuries, “recent bank statements, and his Canada Revenue Agency Notices of Assessment for the last few years,” and on the fact that he had been denied Legal Aid and could not afford to pay a lawyer privately to represent him on the charges.

Dispute Resolution Meeting: April 28, 2015 & Case Conference: Nov. 24, 2015

[31] The parties met with a Dispute Resolution Officer on April 28, 2015 and attended a Case Conference on November 24, 2015.

Mr. Kalair’s Motion to suspend enforcement of final support Order: Jan 14, 2016

[32] On December 12, 2015, Mr. Patel filed a motion on behalf of Mr. Kalair to suspend enforcement of his support obligations. On January 14, 2016, MacKenzie J. dismissed this motion.

1^st Settlement Conference: May 12, 2016

[33] The parties attended a Settlement Conference before Seppi J. on May 12, 2016. Seppi J.’s endorsement does not indicate that either party had a lawyer.

[34] Seppi J. granted Ms. Kabir leave to bring a motion to dismiss Mr. Kalair’s Motion to Change on the ground that he was in breach of his obligations to pay support and costs. Seppi J. stayed Mr. Kalair’s Motion to Change until Ms. Kabir’s motion was decided.

[35] In his October 5, 2018, Mr. Kalair stated, at para. 6, that the Settlement Conference took place after his legal aid lawyer stopped representing him because legal aid had cut off his funding. He stated that this was two days before what he described as “this motion” [sic: it was, in fact, a Settlement Conference]. He stated that he had not had time to review “the box.” I take this to refer to his file, which he had obtained from his former lawyer, Mr. Patel.

[36] Mr. Kalair states that Seppi J. asked him what changes he wanted to make to the final Order. He states that Mr. Patel had sought leave to amend his initial Application [sic: it was, in fact, a Motion to Change], which Mr. Kalair had drafted himself, without a lawyer. He further states that Mr. Patel had not told him what amendments should be made, and that Ms. Kalair was therefore unable to answer Seppi J.

[37] Mr. Kalair made no voluntary payments of child or spousal support under the Final Order until September 2015, when he began making payments of $625.00 per month pursuant to Parent J.’s Order dated July 21, 2015, in the FRO’s enforcement proceeding. Mr. Kalair made those payments until December 2017.

1^st Trial Management Conference: February 24, 2017

[38] Emery J. conducted a Trial Management Conference on February 24, 2017, notwithstanding Seppi J.’s stay of proceedings on May 12, 2016. In his affidavit dated October 5, 2018, Mr. Kalair noted that Ms. Kabir blamed him for booking the Trial Management Conference and that Emery J. agreed that Mr. Kalair was wrong to have done so.

[39] Mr. Kalair further stated that Emery J. “kept questioning the applicant [sic, apparently meaning the Respondent, Ms. Kabir], as to why she did not file a motion to dismiss, and that it has been almost a year between the Justice Seppi order and the Trial Management Conference with Justice Emery.” I take this to mean that Emery J. has inferred from Seppi J.’s Order that she had imposed a stay of Mr. Kalair’s Motion to Change as a temporary measure in the expectation that Ms. Kabir would make a motion to dismiss his Motion to Change on the ground that he had failed to pay child support or the previous costs orders.

Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: March 10, 2017

[40] Ms. Kabir made a motion on March 10, 2017, to dismiss Mr. Kalair’s Motions to Change. She submitted that Mr. Kalair should not be permitted to proceed with his Motions while in contempt of those orders.

Mr. Kalair’s 3^rd lawyer, Richard Wise: Oct 23, 2017

[41] On October 23, 2017, Mr. Kalair filed a Notice of Change of Representation dated October 18, 2017, appointing Richard Wise as his lawyer. On the same date, Mr. Kalair filed his affidavit sworn October 20, 2017, updating his financial information.

[42] On August 1, 2018, Mr. Wise filed a cross-motion to rescind Seppi J.’s stay of his Motions to Change and Mr. Kalair’s affidavit, sworn July 31, 2018, in support of his motion to rescind the stay and responding to Ms. Kabir’s motion to dismiss his Motions to Change. He argued that his Motion to Change the support order was based on a demonstrable change of his financial circumstances (namely, his injury in the motor vehicle collision), which justified his failure to comply with the support order and the outstanding costs orders.

[43] Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change was scheduled to be heard August 8, 2018.

1^st Adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: Aug 8, 2018

[44] On August 8, 2018, the parties attended before McSweeney J. for the hearing of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change. Mr. Kalair was represented by Matthew Kazandji as agent for Richard Wise. Mr. Kalair sought leave to make a cross-motion to have Ms. Kabir found in contempt of the parenting terms of the final Order from 2013.

[45] Ms. Kabir asked the Court to adjourn of her motion, as she had undergone emergency dental surgery the previous day and was on pain medication. Mr. Kalair did not oppose her request. McSweeney J. “seized herself” of Ms. Kabir’s motion, meaning that she would be the judge who would hear that motion. She adjourned the motion to November 14, 2018, peremptory to Ms. Kabir, meaning that Ms. Kabir would not be permitted any further adjournments of her motion.

[46] McSweeney J. refused to grant Mr. Kalair leave to make a cross-motion to have Ms. Kabir found in contempt of the parenting terms of the final Order, having regard to the facts that Mr. Kalair had not provided proper notice of the motion to Ms. Kabir, was himself in breach of the support terms of the Order, and that Ms. Kabir she was making efforts to comply with the parenting terms of the Order.

2^nd adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: Nov. 14, 2018

[47] The parties attended again before McSweeney J. on November 14, 2018, the date scheduled for the hearing of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change. Mr. Kalair attended without counsel and consented to a further adjournment of Ms. Kabir’s motion, as Ms. Kalair was at The Hospital for Sick Children with the parties’ middle child, H.K.B.K. They were receiving instruction as to how to manage H.K.B.K.’s Type 1 diabetes, with which she had recently been diagnosed.

[48] McSweeney J. adjourned Ms. Kabir’s motion to December 28, 2018, again peremptory to Ms. Kabir. Based on Mr. Kalair’s continued complaint that he was being denied access to the parties’ two youngest children, McSweeney J. made a request to the Office of the Children’s Lawyer (“OCL”) for a Voice of the Child Report to ascertain the views and preferences of H.K.B.K. and H.I.B.K. regarding parenting, notwithstanding that Mr. Kalair’s Motion to Change had sought a change of only the support terms of the final Order dated April 26, 2013.

Ongoing enforcement proceeding: Dec. 11, 2018

[49] On December 11, 2018, the Client Services Branch of the Ministry of Children, Community, and Social Services sent a letter to Mr. Kalair notifying him that:

• because he had not attended court on November 27, 2018, its enforcement proceeding had been adjourned to January 8, 2019;

• a default Order for the payment of arrears could be made in his absence; and

• the court could issue a warrant of committal, which meant that he could be jailed for up to 180 days under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, C. 31.

Mr. Kalair’s 4^th lawyer, Richard Forget: Dec. 28, 2018

[50] Mr. Kalair’s mother paid for Mr. Kalair’s fifth lawyer, Richard Forget, who represented Mr. Kalair when Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change resumed before McSweeney J. on December 28, 2018.

3^rd Adjournment of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change: Dec. 28, 2018

[51] The parties re-attended before McSweeney J. on December 28, 2018, for what should have been the hearing of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change. Ms. Kabir attended without a lawyer, apparently intending to rely on the written material her lawyer had previously filed on her behalf.

[52] Mr. Kalair attended, with Mr. Forget as his lawyer, but did not file his client’s new Notice of Change of Representation until January 24, 2019. Mr. Forget apparently failed to alert McSweeney J. to the fact that Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change was still outstanding and needed to be addressed before dealing with his own client’s Motion to Change his child support obligations, which he now wanted to expand to change, in addition, his parenting time.

[53] In her endorsement dated December 28, 2018, McSweeney J. did not decide Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change or, in fact, mention it. Instead, she stated:

This is a motion brought by dad/Applicant in somewhat unusual circumstances. Father seeks to reduce child and spousal support as he is now on ODSP since December 2017. Both parents find terms of Price J. Order of 26/04/2013 no longer able to be complied with. Specifically, the 2 issues of: 1) Father’s inability to pay child and spousal support ordered due to his income drop and disability status; and 2) mother’s inability to persuade the parties’ minor children, daughters 15 and 9, to attend court-ordered access.

[54] McSweeney J. had before her the OCL’s Voice of the Child Report dated December 24, 2018, which she had requested on November 14, 2018. In her endorsement, she noted that the Report, which she had received on the day of the hearing, December 28, disclosed that the children did not want to see their father “for consistent reasons.” She stated:

It seems to me that much has changed for the children in the 5+ years since the Price J. Order. They are significantly older, father has a new partner and a 6 3year old daughter who is half-sister to the parties’ children.

[55] McSweeney J. stated that Mr. Kalair should be given an opportunity to respond to the Voice of the Child Report. She set a timetable for both parties to deliver their responses, and for Ms. Kabir to produce particulars of how the funds in the Children’s Trust had been spent, both by January 18, 2019. Additionally, she granted Ms. Kabir leave to deliver an amended response to Mr. Kalair’s Motion to Change, which he apparently now wanted to expand to include a change of his parenting time, “specifying her request to vary the access provisions of the Price 2013 Order.”

[56] I pause here to note that this Court’s consent Order dated April 28, 2013, as it pertained to custody and access, provided only that Ms. Kabir was to have sole custody of the three children and that Mr. Kalair was to have access as agreed upon by the parties. Ms. Kabir had not made a motion to change the parenting terms of that Order and, as the parties have not agreed to a parenting or access schedule, it was only Mr. Kalair who sought a change in the parenting terms of the final Order.

[57] Based on the Voice of the Child Report, McSweeney J. suspended Mr. Kalair’s parenting time with H.I.B.K. and H.K.B.K. She scheduled a Trial Management Conference to take place February 1, 2019, and a four-day trial of Mr. Kalair’s Motion to Change to begin four months later, on June 17, 2019.

[58] Regarding Mr. Kalair’s non-payment of support, McSweeney J. stated:

These matters should hopefully resolve in 2019, or else it is time for a 4-day trial. I am hopeful that a further T.M.C. may at a minimum resolve the issue of child support, as it is not apparently in dispute that dad is on ODSP, nor that mother is using proceeds of a trust established for the children to meet their s. 7 costs.

[59] It is evident from McSweeny J.’s endorsement that a procedural error was made on December 28, 2018, and what should have been a hearing that day of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change on the ground of his non-compliance with the existing orders for support and for costs, proceeded instead as a hearing to schedule a Trial Management Conference for Mr. Kalair’s Motion to Change, to be followed by a trial of that motion. Because Ms. Kabir’s motion to dismiss the Motion to Change was not dealt with on December 28, it was implicitly adjourned until a date was set for the hearing of it.

2^nd Trial Management Conference: Feb. 1, 2019

[60] On February 1, 2019, Kumaranayake J. conducted a Trial Management Conference. Both parties were represented. Kumaranayake J. noted in her endorsement that Mr. Kalair had recently retained Mr. Forget. Ms. Kabir was now represented by Ginny Lee, whom she had recently retained.

[61] On that date, the parties signed partial Minutes of Settlement of Mr. Kalair’s Motion to Change the final Order. Based apparently on McSweeney J.’s endorsement dated December 28, 2018, which had expressed the hope that the parenting issue would be resolved in the Trial Management Conference, the parties’ Minutes of Settlement addressed both parenting terms and support, even though Mr. Kalair’s Motion to Change had sought only a change to the support terms of the final 2013 Order.

[62] Kumaranayake J. made a consent final Order containing the following terms, among others:

a. Mr. Kalair was to have parenting time in accordance with a schedule which the parties agreed upon;

b. Effective February 1, 2019, spousal support to be terminated;

c. Effective February 1, 2019, Mr. Kalair was to pay child support in the reduced monthly amount of $197.00 based on an imputed income of $15,400.00, being his ODSP benefits.

d. Mr. Kalair was to provide his Income Tax Return and Notice of Assessment by June 1^st of each year for child support to be recalculated. His income would be imputed at either $15,400.00 or as reported in his last years income tax return, whichever was higher.

[63] Kumaranayake J.’s endorsement additionally requested a further Voice of the Child Report to ascertain whether the youngest two children in fact wanted to change their surname to Kabir.

[64] The OCL completed the second Voice of the Child Report on April 9, 2019. That Report confirmed that H.K.B.K. and H.I.B.K. wanted to change their last name to Kabir because they no longer wanted to be associated with Mr. Kalair’s last name, in light of their Google search of their name, which brought up numerous stories about Mr. Kalair’s allegedly criminal activities.

[65] As McSweeney J.’s Order dated December 28, 2018, denied Mr. Kalair’s request for leave to make a cross-motion to have Ms. Kabir found in contempt of the parenting terms of the final Order, and the parties had reached agreement on a parenting schedule at the Trial Management Conference, Kumaranayake J.’s Order left outstanding only the issues of:

(a) the change that the Respondent proposed making to the children’s last names;

(b) the arrears of spousal support;

(d) the accounting for the funds in the children’s trust account.

[66] Kumaranayake J. left the trial of Mr. Kalair’s Motion to Change on the trial list for June 2019 and adjourned the Trial Management Conference on the remaining issues in Mr. Kalair’s Motion to Change to a date to be arranged with the Trial Office, to take place before April 19, 2019. Again, Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change was not addressed, as McSweeney J.’s endorsement of December 28, 2018, had been silent concerning it.

Mr. Kalair’s 5^th lawyer, Emily Banks: March 19, 2019

[67] On March 25, 2019, Mr. Kalair filed a new Notice of Change of Representation, signed March 25, 2019, appointing Emily Banks as his lawyer.

1^st Adjournment of the trial of Mr. Kalair’s Motion to Change: June 2019

[68] According to an endorsement by LeMay J. dated October 13, 2020:

There was supposed to be a trial in June of 2019, but it was adjourned because the Applicant had recently retained new counsel. The trial was postponed to October of 2019 but, again, was adjourned because the Applicant had recently produced additional documentation.

2^nd Adjournment of trial of Mr. Kalair’s Motion to Change: Aug 9, 2019

[69] LeMay J.’s endorsement dated October 13, 2020, referred to the first adjournment of the trial of Mr. Kalair’s Motion to Change, at his request, in June 2019, but omitted to mention that the trial was then scheduled to proceed in September 2019, but was then pre-emptively further adjourned, again at Mr. Kalair’s request, on August 9, 2019.

[70] On August 9, 2019, Ms. Banks made a request on Mr. Kalair’s behalf before Fowler Byrne J. to adjourn the trial of Mr. Kalair’s Motion to Change which had earlier been adjourned to September 9, 2019. By then, Ms. Banks had apparently exhausted the 14 hours authorized by Mr. Kalair’s Legal Aid Certificate, which did not authorize Ms. Banks to represent Mr. Kalair at trial.

[71] Fowler Byrne J. vacated the trial date of September 9, 2019, ordered further disclosure by the parties, and re-scheduled the trial for 4 days beginning April 27, 2020. She ordered a further Trial Management Conference to take place on October 16, 2019.

[72] When LeMay J., in his endorsement dated October 13, 2020, states that the trial was postponed to October 2019, he appears to have been referring to the Trial Management Conference that Fowler Byrne J. ordered take place October 16, 2019, with the trial to follow, beginning April 27, 2020.

[73] Fowler Byrne J.’s endorsement, in para. 7, stated:

Leave to the Resp. to bring a motion for enforcement of existing access + clarification of same.

[74] Fowler Byrne J. granted Mr. Kalair “leave to amend his pleading” prior to September 13, 2019, and directed that Ms. Kabir should amend her pleadings by October 11, 2019.

[75] In her endorsement, Fowler Byrne J. observed that the matter was “spiraling out of control.” She noted that the parties were still arguing the parenting issues, which appeared to have been settled on a final basis by the Order of Kumaranayake J. dated February 1, 2019. She directed the parties to write to the Regional Senior Justice (“R.S.J.”) to request that a Case Management Judge be appointed.

[76] Again, Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion to Change, on the ground of his non-compliance with the existing orders, was not addressed, as Kumaranayake J.’s endorsement dated February 1, 2019, had been silent concerning it.

1^st Request for Case Management: Sept. 2019

[77] Mr. Kalair did not “amend his pleading” by September 13, 2019, as Fowler Byrne J.’s endorsement of August 9, 2019, directed. Instead, in September 2019, Mr. Kalair made a request in writing to then R.S.J. Daley to assign a Case Management Judge to manage the proceeding. He tendered a copy of his letter at the hearing of these motions on September 28, 2022. The letter stated, in part:

I have had discussions with Legal Aid as my lawyer Emily Banks since March 2019 has been representing me has gone off record. She blames that she has no more legal aid hours. Legal Aid stated to change lawyers after one has been on for 6 months is only allowed in exception cases. Legal Aid on my call on August 9 stated that since RSJ Daley has been now involved that I should appeal to him. I ask a senior lawyer be appointed by the court as my lawyer. In speaking to legal aid they stated if such an endorsement is received they would then handle the file.

[78] The Regional Manager of Judicial Services, Lisa Weiss, replied to Mr. Kalair’s email on September 25, 2019. She stated that R.S.J. Daley had reviewed all correspondence submitted by Ms. Lee, on behalf of Ms. Kabir, and by Mr. Kalair. She advised that there would be no case management judge assigned to the file, as a Trial Management Conference was scheduled to take place October 16, 2019, with the trial to follow soon after, on April 27, 2020.

Mr. Kalair’s 2nd Motion to Change: Oct 25, 2019

[79] On October 25, 2019, Mr. Kalair made a second Motion to Change the final Order, this time seeking the following:

a. Joint decision-making for H.K.B.K. and H.I.B.K.;

b. Parenting time with H.K.B.K. and H.I.B.K. whereby they would reside with him on school days;

c. Appointment as Trustee of the Kalair Children's Trust; and

d. Spousal support to be paid by Ms. Kabir to him from 2013 onwards. Mr. Kalair had not claimed spousal support in his original Application, which had led to the final Order in 2013.

[80] This Motion to Change was, in my view, not authorized by Fowler Byrne J.’s endorsement dated August 9, 2019, as it was neither “a motion for enforcement of existing access + clarification of same,” nor an amendment of Mr. Kalair’s pleading, nor filed by September 13, 2019.

Mr. Kalair’s 6^th lawyer, Riddhi Agarwal: Nov 2019

[81] Based on the new Motion to Change, Mr. Kalair renewed his application for legal aid. LAO issued him a new Certificate, which Mr. Kalair then used to retain his sixth lawyer, Riddhi Agarwal, to represent him in his Motions to Change. He filed a new Notice of Change of Representation, dated December 4, 2019, on December 12, 2019.

[82] On January 22, 2020, Emery J. made an endorsement allowing Ms. Kabir to file a Response to Mr. Kalair’s second Motion to Change.

[83] On February 14, 2020, Emery J. made a further endorsement, for certain of the disclosure that Fowler Byrne J. had ordered on August 9, 2019.

3^rd Trial Management Conference: Feb. 25, 2020

[84] McSweeney J. conducted a further Trial Management Conference on February 25, 2020. At that point, the trial was still scheduled to take place from April 27 to 30, 2020. McSweeney J. completed a Trial Scheduling Endorsement Form and directed that the trial be “tightly managed” based on the estimates of time set out in the Trial Scheduling Endorsement Form.

Suspension of Court operations March 15, 2020

[85] The trial did not proceed in April 2020 owing to the partial suspension of Court operations that was announced in the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, dated March 15, 2020 (“Notice to the Profession”), to protect public safety from health risks associated with the COVID-19 pandemic. The trial was rescheduled to take place for four days beginning November 30, 2020.

2^nd Request for Case Management: Oct 9, 2020

[86] On October 9, 2020, Mr. Agarwal’s associate, Vivene Younger, renewed Mr. Kalair’s request to former R.S.J. Daley to assign a Case Management Judge. Again, his request was refused, this time because the trial was now scheduled to take place on November 30, 2020.

3^rd adjournment of the trial of Mr. Kalair’s Motions to Change: Oct 13, 2020

[87] On October 13, 2020, Ms. Kabir’s lawyer, Ms. Lee, obtained an Order from LeMay J. removing her as counsel of record as her law firm had dissolved and she was considering whether to continue in private practice, and was not taking new work. LeMay J. made a further Order adjourning the hearing of Mr. Kalair’s Motions to Change to March 8, 2021, for a Trial Management Conference and to the week of April 26, 2021, for a trial, peremptory to both parties, to proceed with or without counsel.

[88] LeMay J.’s Order, on consent, combined Mr. Kalair’s two Motions to Change and, to avoid any prejudice to Mr. Kalair from the delay, the Order stayed FRO’s enforcement of the final Order pending the hearing of Mr. Kalair’s Motions to Change. LeMay J. noted in his endorsement:

This brings me back to the Order of Fowler Byrne J. This order was designed to ensure that this matter went to trial as soon as possible. However, some background to this Order is required. There was supposed to be a trial in June of 2019. However, it w adjourned because the Applicant had recently retained new counsel. The trial was postponed to October of 2019 but, again, was adjourned because the Applicant had recently produced additional documentation. It was in the context of these significant delays caused by the Applicant that Fowler Byrne J. made her order.

This brings me to the Court of Appeal’s reasons in Law Society of Upper Canada v. Igbinosum, 2009 ONCA 484. In that case, the Court of Appeal held that there may be circumstances in which a Court or a Tribunal must consider granting an adjournment even when the hearing date was peremptory. This is such a case for the following reasons:

a) The reason that the date was peremptory was in large part as a result of delays on the part of the Applicant. As a result, the peremptory nature of the dates is a factor that has a lesser weight when it is the Respondent seeking the adjournment.

b) The adjournment is necessitated through no fault of the Respondent. It is not her fault that her counsel is no longer able to continue to represent her….

[89] In a further Order dated February 3, 2021, LeMay J. made a request for further involvement of the OCL to represent the interests of the two youngest children.

4^th Trial Management Conference: March 8, 2021

[90] Despite the reduction of child support and termination of spousal support pursuant to Kumaranayake J.’s consent Order, Mr. Kalair continued not to pay child support. His arrears of support as of July 1, 2021, totalled $56,655.21.

[91] On March 8, 2021, Emery J. conducted a combined (2^nd) Settlement Conference and (4^th) Trial Management Conference. Mr. Beck appeared at the Conference on behalf of the OCL and indicated that the OCL intended to appoint a clinician to interview the children, and that it may take three months to prepare a report and conduct a disclosure meeting with the parties. Emery J. therefore rescheduled the joint conference to June 16, 2021, and vacated the trial date of April 26, 2021.

[92] In his endorsement dated March 8, 2021, Emery J. granted Ms. Kabir leave to proceed with her motion pursuant to Rule 1(8) of the Family Law Rules, O. Reg. 114/99 (“FLR”) to enforce Mr. Kalair’s spousal and child support obligations and the costs orders made against him, which had not been heard on December 28, 2018, to which date it had been adjourned.

[93] Emery J. additionally granted Mr. Kalair leave to make a new cross-motion pursuant to Rule 31 of the FLR to have Ms. Kabir found in contempt of the parenting terms of Kumaranayake J.’s Order dated February 1, 2019. Emery J.’s endorsement does not disclose his reasons for granting Mr. Kalair leave to make the cross-motion. I infer that he based this order on the fact that Mr. Kalair was still complaining that he was not able to exercise the parenting time provided for in Kumaranayake J.’s Order, and that Fowler Byrne J., in her endorsement on August 9, 2019, had granted him leave to make a motion to enforce those terms of the Order.

[94] It is not clear from the record whether it was pointed out to Emery J. that:

a) The OCL’s first Voice of the Child Report dated December 24, 2018, had indicated that the children refused to see their father;

b) Based on that Report, McSweeney J.’s Order dated December 28, 2018, had suspended the parenting time that Kumaranayake J. had granted Mr. Kalair on February 1, 2019;

c) McSweeney J., at the hearing before her on December 28, 2018, found that Ms. Kabir was making efforts to facilitate Mr. Kalair’s parenting time with the children and, on that basis, denied his request for leave to make a cross-motion to have Ms. Kabir found in contempt of those parenting terms;

d) The OCL’s second Voice of the Child Report dated April 9, 2019, had confirmed that the children still refused to have parenting time with their father;

e) The OCL recommended against forcing the children to have parenting time with their father against their wishes;

f) Mr. Kalair had delayed making his motion to enforce his parenting time for a year and a half, from August 9, 2019, when Fowler Byrne J. had granted him leave to do so, to March 8, 2021.

Emery J. makes no mention of these factors in his endorsement.

Appointment of OCL Clinician: March 11, 2021

[95] On February 23, 2021, Stephen Beck was appointed by the OCL to act for the children of the marriage. Mahesh Prajapat was appointed as clinician on March 11, 2021.

[96] Ms. Kabir scheduled her motion to dismiss Mr. Kalair’s Motions to Change to be heard July 23, 2021. The hearing was adjourned to September 29, 2021, to give Mr. Kalair yet a further opportunity to deliver his motion to have Ms. Kabir found in contempt. The date of September 29, 2021 was later vacated when Mr. Kalair failed to deliver his motion material. Ms. Kabir rescheduled the hearing of her motion for June 13, 2022.

4^th Trial Management Conference: June 16, 2021

[97] Pending the hearing of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motion(s) to Change, the combined settlement Conference and Trial Management Conference that Emery J. had adjourned on March 8, 2021, resumed before me on June 16, 2021. As the parties had not completed their financial disclosure and were not prepared to discuss settlement, the Court conducted the hearing as a Trial Management Conference and reserved its decision on the trial management issues to a later date.

[98] After interviewing the children, Mr. Beck and Mr. Prajapat took the position on their behalf at the hearing on June 12, 2021, that they should continue to reside with their mother and should not be required to have parenting time with their father at that time.

[99] By June 16, 2021, the trial sittings in January and May 2022 were closed. The parties had neither filed updated Trial Scheduling Endorsement Forms nor filed a list of the disclosure that was still outstanding, so this Court granted them leave to submit those documents the following day (June 17, 2021).

[100] This Court issued an endorsement on July 12, 2021, after reviewing the parties’ newly filed documents. The endorsement recorded the resolution of some of the issues raised in the Motions to Change which had been decided at prior hearings. Additionally, the endorsement made note of the steps that had yet to be taken to resolve the still-outstanding issues if the judge hearing Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change permitted the Motions to Change to proceed.

[101] This Court noted in its endorsement that at the conclusion of the Trial Management Conference on February 1, 2019, the remaining issues for trial were:

a) arrears of spousal support,

b) arrears of child support,

c) the proposed change of the children’s last names; and

d) the accounting of the children’s trust account, requested by Mr. Kalair.

Kumaranayake J. adjourned the proceeding to a further Trial Management Conference on April 19, 2019, in contemplation of a trial that was to occur the week of June 17, 2019, on those remaining issues.

[102] This Court further noted in its endorsement that at the Trial Management Conference before McSweeney J. on February 25, 2020, the parties had settled the issue of the children’s name change, agreeing that Ms. Kabir would withdraw her request for leave to change their names without costs.

[103] Concerning disclosure, this Court noted in its endorsement on July 12, 2021, for the conference held on June 16, 2021, that:

• At the Trial Management Conference on February 1, 2019, Kumaranayake J. had ordered the parties to produce certain disclosure, and to exchange information within a month on any items of disclosure they required that had not yet been produced;

• At Ms. Kabir’s motion to adjourn the trial on August 9, 2019, Fowler Byrne J. had made an Order for production of items omitted from earlier disclosure, including missing bank account information, missing credit card information, statements, gift/loan information, and a letter from Zero Mortgage Company;

• At the hearing on February 19, 2020, Emery J. made a further Order for disclosure, incorporating the outstanding items of disclosure ordered by Fowler Byrne J. on August 9, 2019, and, additionally, requiring the Applicant to produce a direction and authorization to the Ministry of Community and Social Services to produce his ODSP file, and to produce, within 14 days, an affidavit providing information and documents concerning certain past bank and credit card transactions.

[104] It is evident from the foregoing history that Mr. Kalair had failed to comply fully with at least three separate orders for disclosure. Ms. Kabir provided evidence that Mr. Kalair had continued to operate his business after he alleged he had been incapacitated from doing so by his injuries in the motor vehicle collision that had occurred in March 2013, a month before the final Order for support was made. The disclosure of his financial records, including the records of his mortgage company and the tax returns and banking records that would disclose his spending, were clearly necessary to enable Ms. Kabir to defend against his Motion to Change the support terms of the order. Based on his history of non-disclosure and of his compliance with the support and costs orders, this Court made the following Order on July 12, 2021, with regard to Mr. Kalair’s disclosure, setting out with precision the records that he had not yet produced and that Ms. Kabir would require for a fair trial of the financial issues:

DISCLOSURE

The Applicant shall, by August 12, 2021, produce the following to the Respondent:

a. Mr. Kalair’s 2013, 2014, 2015, 2016, 2017 NOAs and full Income Tax Returns;

b. Any and all documentation relating to the motor vehicle accident that allegedly occurred in or around March 2013, including:

i. All police reports related to the Applicant’s accident;

ii. All insurance claim/report related to the said accident;

iii. Mr. Kalair’s complete claims history with any car insurance provider that he has had, from March 2013 to present;

iv. All decisions and reasons received from ODSP since March 2013 with respect to any application, appeal, or change in status of ODSP benefits by Mr. Kalair.

g. Letter from Zero Mortgage Canada Corporation detailing start and end dates of employment, reason for termination, and details of any severance package received;

h. Job search History from April 13, 2013, to present, including:

i. Name and contact of Company and Position applied for;

ii. Date of Application;

iii. Interview request received (Y/N);

iv. If yes, Date of Interview;

v. Result of Application.

i. Updated Financial Statement;

j. Accounting of all gifts or loans received from 2013 to present (as he has alleged that he was only able to make payments due to gifts/loans), including:

i. Name and relation of Donor/Creditor;

ii. Amount gifted/loaned;

iii. Date of Gift/Loan;

iv. Supporting documentation;

v. If loan, have repayments been made.

k. Bank Account statements from any bank Mr. Kalair has an interest in, from March 2013 to present, including his Alterna account and BMO account.

[105] This Court reserved the costs of the Conferences to the Trial Judge or, if Ms. Kabir’s motion to strike Mr. Kalair’s Motions to Change was successful, to the judge hearing that motion on July 23, 2021.

[106] Regarding parenting, this Court noted in its endorsement on July 12, 2021, for the conference on June 16, 2021, that:

• At the Trial Management Conference on February 25, 2020, McSweeney J. had directed that Mr. Kalair, by March 2, 2020, was to stipulate what weeks during the summer of 2020 he would be exercising access to the children;

• At the Trial Management Conference on February 1, 2019, Kumaranayake J. had requested a Voice of the Child Report on the issue of the name change that Ms. Kabir proposed to make. The OCL produced a Voice of the Child Report that addressed the issue of parenting generally;

• At the Trial Management Conference on June 12, 2021, Mr. Beck, on behalf of the OCL, reported that the children had forcefully and consistently expressed a wish to have no access by their father. Mr. Beck stated that while the children were evidently aligned with Ms. Kabir, and their express wish not to have any access to Mr. Kalair appeared to be disproportionate to the experiences they reported having had with him in the past, Mr. Beck was satisfied that the children were expressing their preferences independently and not because of parental alienation by Ms. Kabir.

[107] Mr. Kalair asked the Court to make a further request to the OCL for a clinical investigation as to whether there was evidence that Ms. Kabir had alienated the two younger children from their father and contributed to the children’s refusal to have parenting time with him. Mr. Beck pointed out that such a request could delay the trial of the matter by a further six to nine months, owing to the time a clinician would require to complete an investigation and prepare a report. He noted that by then, the youngest child would be 14-years-old and that neither child, at the ages they would then have reached, would be readily amenable to complying with a parenting order that they strongly opposed. Mr. Kalair advised that he was not pressing his request if the result would be a further lengthy delay of the trial. The Court therefore declined to request a clinical investigation by the OCL.

[108] Given that the final Order of Kumaranayake J. dated February 1, 2019, provided that Mr. Kalair’s parenting of the children in July and August was to be subject to the children’s wishes, the only issue that remained outstanding regarding parenting was enforcement of the regular access that the parties had consented to in the final Order of Kumaranayake J., and what the children’s wishes were regarding summer access.

Mr. Kalair’s 7^th lawyer, Roger Rowe: Sept 2, 2021

[109] Mr. Kalair appointed his seventh lawyer, Roger Rowe, by a Notice of Change of Representation dated September 2, 2021, filed that day.

Mr. Kalair’s motion to have Ms. Kabir found in contempt: Sept 29, 2021

[110] On September 29, 2021, Mr. Rowe, on behalf of Mr. Kalair, delivered a motion, to be heard June 13, 2022. The motion sought an order finding Ms. Kabir in contempt of Kumaranayake J.’s Order dated February 1, 2019. Mr. Kalair alleged that Ms. Kabir had failed to facilitate his access to the parties’ youngest child, H.I.B.K.

Removal of Mr. Rowe as Mr. Kalair’s lawyer: June 13, 2022

[111] Mr. Rowe made a motion on May 20, 2022, also to be heard June 13, 2022, to be removed as Mr. Kalair’s lawyer. The Court made the requested Order removing Mr. Rowe on June 13, 2022.

[112] Mr. Kalair elected not to offer any evidence to this Court as to why Mr. Rowe sought to be removed as his lawyer. While Mr. Kalair was not required to disclose this information, as the communications between him and his lawyer are protected by solicitor-and-client privilege, the absence of such evidence leads this Court to conclude that Mr. Kalair was responsible for the further delay that ensued from his desire to find a new lawyer, his eighth in the proceeding.

[113] Ms. Kabir moved for an order dismissing Mr. Kalair’s Motions to Change on the following grounds:

(a) He failed to comply with the support orders of the Final Order dated April 26, 2013, and the later interim consent Order of Kumaranayake J. dated February 1, 2019, which terminated his spousal support obligations and reduced his child support obligations to $197.00 per month, based on imputed income of $15,400.00 received under ODSP. As of July 1, 2021, his arrears of spousal and child support totaled $56,655.21;

(b) He failed to pay the following costs orders:

i. $1,000.00 ordered by Lemon J. dated May 10, 2011;

ii. $3,000.00 ordered by André J. dated January 11, 2013;

iii. $5,000.00 ordered by Price J. dated April 26, 2013;

iv. $750.00 ordered by Lemon J. dated September 11, 2015; and

v. $750.00 ordered by Mackenzie J. dated Jan. 14, 2016.

1^st, 2^nd, and 3^rd adjournments, of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change based on his non-compliance: July 23, 2021, Sept. 29, 2021, and June 13, 2022, respectively

[114] Miller J. stated the following in her endorsement dated June 13, 2022, granting Mr. Kalair a further adjournment of Ms. Kabir’s motion to strike his Motions to Change based on Mr. Rowe’s removal as his lawyer:

Ms. Kabir is opposed to any adjournment. Ms. Kabir’s motion was originally scheduled to be heard July 23, 2021. It was adjourned to September 29, 2021, at the request of Mr. Kalair - a long motion date – so that he could also bring his contempt motion to be heard at the same time. This date was vacated due to Mr. Kalair’s failure to serve the material in support of his contempt motion. A trial on the combined Motions to Change is scheduled for the trial sittings in January 2023. It is essential that Ms. Kabir’s motion to strike be heard and decided before she is put to the considerable cost of preparing for the combined Motions to Change to proceed to a trial.

[115] As Mr. Kalair no longer had a lawyer, Miller J. adjourned the long motion (Ms. Kabir’s motion to strike Mr. Kalair’s Motions to Change and Mr. Kalair’s contempt motion) to September 29, 2022, notwithstanding that Mr. Kalair had been aware of his lawyer’s request to be removed as solicitor of record for at least a month, as Miller J. noted in her endorsement.

[116] Ms. Kabir opposed Mr. Kalair’s request for adjournment because a trial of Mr. Kalair’s Motions to Change was to take place at the January 2023 trial sittings. Miller J. understood the importance of Ms. Kabir’s motion proceeding quickly but reasoned that Ms. Kabir would still have time to prepare for trial if her motion was unsuccessful. Miller J.’s endorsement states:

It is essential that Ms. Kabir's motion to strike be heard before she is put to the considerable cost of preparing for the combined Motions to Change to proceed to a trial." The Endorsement further states, "Both motions are peremptory on Mr. Kalair. Even if he is without counsel on September 29, 2022, Ms Kabir's motion must proceed.

[Emphasis added]

[117] The date for the hearing of Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change and Mr. Kalair’s cross-motion to have Ms. Kabir found in contempt was later changed from September 29 to September 28, 2022. This change was made necessary by the fact that September 29, 2022, which Miller J. appointed in her June 13, 2022, endorsement for the hearing, was not a date on which the Court normally hears motions that require more than an hour.

[118] While I do not fault either party for this change, I will, for the sake of completeness, describe the correspondence by which the Court notified both parties of the new date, one day earlier than originally appointed, for the hearing of the motions. The correspondence has some relevance to the issue of delay, as it reveals in some detail how Mr. Kalair was going about retaining a new lawyer, and the further delay that ensued, leading to his request for a further adjournment on September 28, 2022.

[119] Ms. Kaibir’s motion to dismiss Mr. Kalair’s Motions to Change, and Mr. Kalair’s cross-motion to have her found in contempt, were to be heard together as a long motion. When the Trial Office noticed that Miller J., in her endorsement on June 13, 2022, had adjourned the motions to a date that was not designated for the hearing of long motions, it wrote to both parties on July 20, 2022, to ensure that they both would be available on September 28, 2022, which was designated for the hearing of such motions. Upon receiving no reply, the Trial Office sent a further e-mail on July 22^nd, again asking both parties to confirm their availability.

[120] Ms. Kabir’s lawyer, Sangar Duraiappah, replied later that morning, confirming his availability on September 28^, 2022. Mr. Kalair then replied, stating, “I have a new lawyer going on record and have to see his availability.” The Trial Office followed up on July 25, and again on July 29^th, and on July 29^th, at 10:36 a.m., advised Mr. Kalair that it required his response by the end of the day. Mr. Kalair replied that day, stating, “The earliest I will be able to find out if the lawyer I selected can confirm that date is end of August month as he said he first has to be retained. I plan to retain him by the end of August.”

[121] On September 21, 2022, the Eligibility Review Office of LAO overturned LAO’s decision to refuse his application to change lawyers for representation in his Motions to Change, not including trial authorization.

[122] On the same day, September 21, 2022, the Trial Office notified Ms. Kabir’s lawyer that the long motion had been struck from the list because a Confirmation had not been filed 21 days in advance, as the Notice to the Profession required. Ms. Kabir’s lawyer explained that she had understood that a Confirmation was not required as Miller J.’s endorsement had stated that the motion must proceed, and the Trial Office had earlier advised that no further material needed to be filed.

[123] On September 22, 2022, Mr. Duraiappah sent an email to Mr. Kalair advising him that he had been informed that the long motion that Miller J. had scheduled to be heard September 29, 2022, which had then been rescheduled to September 28, 2022, would not be proceeding and that he had asked the Court to schedule it on the first date available in December 2022 and would be asking that the trial scheduled to take place in January 2023, be adjourned. However, on that same date, Bloom J. ordered that the long motion proceed on September 28, 2022, if practicable.

[124] At the hearing on September 28, 2022, Mr. Kalair requested a further adjournment of Ms. Kalair’s motion to enable him to retain a lawyer, his eighth in the proceeding. Mr. Kalair said that he had consulted a lawyer, Mr. Ken Wise, but noted that he would require his files, which were still with Mr. Rowe. He said that Mr. Wise was not sure that his calendar would permit him to attend the trial of his Motions to Change in January 2023 and had therefore referred him to two other lawyers. Mr. Kalair advised the Court that he had sent emails to those lawyers but had not yet received a reply.

[125] The Court Registrar, at the Court’s direction, telephoned Mr. Wise’s office and spoke to Mr. Wise’s son, an articling student in his father’s office, on speaker phone from the courtroom. He advised the Court that his father would not be retained by Mr. Kalair and that this was not the result of Mr. Wise’s unavailability.

[126] The Court Registrar, at the Court’s further direction, telephoned Roger Rowe, who was asked, again on speaker phone, whether Mr. Kalair’s files were readily available. He stated that the files have been available for several weeks for Mr. Kalair to pick up. When the Court asked Mr. Kalair why he had not picked up his files, he replied that he was waiting until he had retained a new lawyer. He stated that he was unable to handle his file on his own, notwithstanding that Mr. Rowe, when retained, had relied on Mr. Kalair to locate documents from his file and provide them to him.

[127] When the Court asked Mr. Kalair why he had not filed any documents with the Court, either in response to Ms. Kalid’s motion to strike his motions or in support of his own motion to have Ms. Kalid found in contempt, he replied that he had relied on Mr. Rowe to file the necessary documents, but that Mr. Rowe had told him that he had tried to file them and that “they had not gone through.” When asked why he had not filed the documents himself following Mr. Rowe’s removal from the record on June 13, he could offer no explanation.

THE ISSUES

[128] These motions, namely, Ms. Kabir’s motion to strike out Mr. Kalair’s Motions to Change, and Mr. Kalair’s motion to have Ms. Kabir found in contempt, require the Court to determine the following issues:

a. Should the Court exercise its discretion to grant Mr. Kalair a further adjournment of the motions?

b. If not, should the Court strike out Mr. Kalair’s Motions to Change on the ground that he has failed to comply with the Orders for child and spousal support and the numerous costs Orders made against him?

c. Should Ms. Kabir be found in contempt of the parenting terms of the final Order of this Court?

POSITIONS OF THE PARTIES

a. Should Mr. Kalair be granted a further adjournment?

i. Mr. Kalair’s position

[129] Mr. Kalair seeks a further adjournment to enable him to retain a new lawyer to represent him on the motions. He asserts that “circumstances beyond his control” prevented him from doing so since his last lawyer, Mr. Rowe, was removed as his counsel of record on June 13, 2022.

ii. Ms. Kabir’s position

[130] Ms. Kabir opposes Mr. Kalair’s request. She submits that:

a) Mr. Kalair has purposely delayed her motion to strike his motions to avoid enforcement of the existing support and costs orders,

b) The circumstances that precipitated Mr. Kalair’s past and present adjournment requests were avoidable, and

c) It would unfairly burden her with additional legal costs and bring the administration of justice into disrepute to grant Mr. Kalair’s request.

b. Should the Court strike out Mr. Kalair’s Motions to Change?

i. Mr. Kalair’s position

[131] Mr. Kalair submits that his failure to pay support pursuant to the final Order resulted from his disabling injury in a motor vehicle collision in 2013 and that the support he was required to pay pursuant to the interim Order of Kumaranayake J. was, in fact, paid directly by ODSP by an agreement between ODSP and the FRO.

ii. Ms. Kabir’s position

[132] Ms. Kabir submits that Mr. Kalair has made no efforts to pay the support or costs Orders, and that the payments by ODSP were, in fact, enforcement proceedings.

c. Should Ms. Kabir be found in contempt of the parenting terms of the final Order?

i. Mr. Kalair’s position

[133] Mr. Kalair submits that Ms. Kabir has unreasonably withheld parenting from him and has alienated their children from him, contrary to the final Order, which required her to facilitate his parenting.

ii. Ms. Kabir’s position

[134] Ms. Kabir submits that:

a) The children are estranged from Mr. Kalair because of his own abusive conduct,

b) The children have refused to be parented by Mr. Kalair, notwithstanding her encouragement of their relationship,

c) She has not breached the parenting terms of the final Order, which left Mr. Kalair’s access to the children in her discretion, and

d) It would be contrary to the children’s best interests to force them to have contact with Mr. Kalair.

EVIDENCE AND ANALYSIS

a. Should Mr. Kalair be granted a further adjournment?

General principles applying to adjournment requests

[135] In considering Mr. Kalair’s request for a further adjournment, the Court is mindful of Rule 2(2) of the FLR. That rule provides that “The primary objective of these rules is to enable the court to deal with cases justly.”

[136] Pursuant to Rule 2(3) of the FLR, “Dealing with a case justly includes:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.”

[137] In considering the request for an adjournment, I assessed the considerations set out in Ariston Realty Corp. v. Elcarin, 2007 ONSC 13360, [2007] O.J. No. 1497 (QL), including particularly:

a) the particular circumstances of the request for an adjournment and the reasons and justification for the request;

b) the practical consequences of an adjournment on both substantive and procedural justice;

c) the competing interests of the parties in advancing or delaying the progress of the litigation;

d) the need of the administration of justice to orderly process family and civil proceedings; and,

e) the need of the administration of justice to effectively enforce court orders.

Applying the legal principles to the facts of this case

a) The particular circumstances of the request for adjournment and the reasons and justification for it

[138] The circumstances of Mr. Kalair’s request are that, after Fowler-Byrne J. granted Mr. Kalair leave, on August 8, 2019, to make a motion to enforce the parenting terms of Kumaranayake J.’s Order dated February 1, 2018, he delayed doing so for a year and a half, until March 8, 2021. On that date, he sought leave, this time from Emery J., to make a cross-motion to have Ms. Kabir found in contempt for her non-compliance with those terms. Mr. Kalair was then granted one adjournment of Ms. Kabir’s motion on July 23, 2021, to enable him to serve and file his cross-motion, which he had still not done more than four months after Emery J. had granted him leave to do so. He was then granted a second adjournment by Miller J. on June 13, 2022, to enable him to seek new counsel after his seventh lawyer, Roger Rowe, obtained an order removing himself as Mr. Kalair’s lawyer, although Mr. Kalair had known for a month, at that point, that Mr. Rowe would be asking to be removed as his lawyer.

[139] Miller J. granted that second adjournment on the explicit condition that the motions would proceed on the next hearing date whether Mr. Kalair had counsel or not.

[140] The justification Mr. Kalair offers for his new request for adjournment is that his application to transfer his Legal Aid Certificate from Mr. Rowe to another lawyer, which was initially refused by LAO, was later reviewed and granted by LAO on September 21, 2022. Mr. Kalair therefore sought a third adjournment on September 28, 2022, so that he could find a new lawyer, notwithstanding Miller J.’s direction that the motions were to proceed that day whether Mr. Kalair had counsel or not.

[141] I reject the justification Mr. Kalair advances in support of his request. At the hearing before me on September 28, 2022, Mr. Kalair still had not found a new lawyer to represent him, although he had been without a lawyer for a year and had been awaiting the outcome of LAO’s review of its decision to refuse his request to transfer his Certificate to a new lawyer.

b) The practical consequences of granting the request

[142] The practical consequence of granting Mr. Kalair’s request would be to further delay the hearing of Ms. Kabir’s motion, which she initially made five years ago, on March 10, 2017, to dismiss Mr. Kalair’s Motions to Change, which he made on March 3, 2015, and to prolong the stay of proceedings that Seppi J. ordered at the Settlement Conference on May 12, 2016.

[143] As of September 28, 2022, the next available dates for short motions were in mid-December 2022, and the next available dates for long motions were in July 2023. Neither of those would allow the trial of Mr. Kalair’s Motions to Change to proceed in January 2023, if Ms. Kabir’s motion to strike out those motions was unsuccessful.

[144] It is in Mr. Kalair’s interest to delay the hearing of Ms. Kabir’s motion, and with it, the enforcement of his support obligations. It is in Ms. Kabir’s interest to advance the litigation’s progress, to resolve the amount owed to her and her obligations in relation to the children’s parenting and to resume the enforcement of the amount found to be owing to her.

c) The need of the administration of justice to orderly process family proceedings

[145] The need of the administration of justice to orderly process family proceedings is heightened in the present case by the delays that resulted from the suspension of court operations during the COVID-19 pandemic. The need of the administration of justice to effectively enforce court orders is compromised by the ongoing delay of this proceeding, having regard to the substantial arrears of support that have accrued under the 2013 final Order, the continued lack of agreement by the parties and the resulting uncertainty as to the arrangements for parenting of the children, and Miller J.’s Order on June 12, 2022, directing that the motions be heard on the next appointed day, whether or not Mr. Kalair had counsel.

f) the need of the administration of justice to effectively enforce court orders.

[146] Granting a further adjournment to Mr. Kalair at this time would unfairly benefit him at the expense of Ms. Kabir by prolonging his ongoing non-compliance with the Court’s orders. In Holly v. Greco, 2019 ONCA 464, the respondent to a motion had requested an adjournment to enable him to file material responding to the applicant’s material, which had been served on him while his counsel was away. The Court of Appeal upheld the motion judge’s refusal of the request, noting, at para. 5: “The motion judge's view was that an adjournment would unfairly benefit the appellant by extending and facilitating his ‘ongoing calculated non-compliance’: Holly v. Greco, 2018 ONSC 6219, at para. 19.”

[147] Mr. Kalair’s non-compliance arises from both his non-payment of support and his failure to make full financial disclosure. In Mullin v. Sherlock, 2018 ONCA 1063, the Court of Appeal stated, at para. 41:

Judges presiding over family law disputes are frequently faced with mounds of material, a busy court docket and pressure to process files expeditiously. Repeated and frequent motions for disclosure are often necessary, though they should not be. As stated by Benotto J.A. in Roberts [Roberts v. Roberts, 2015 ONCA 450], at para. 12, delinquencies add significant expense to proceedings and consume substantial judicial time and resources. Counsel and their clients should not expect that repeated adjournments and indulgences will be given to instances of non-disclosure. Furthermore, an effective remedy for inadequate or non-disclosure should be available.

[148] Following the conference on June 16, 2022, Mr. Kalair produced his notices of assessment from 2013 to 2015 and his T1 general tax return for 2016, and an estimated 800 pages of documents to Ms. Kabir’s lawyer. He did not, however, produce many of the critical documents that the Order dated July 12, 2021, required him to produce, including his tax returns for years other than 2016, his bank statements, the accounting for gifts and loans, the information from Zero Mortgage Canada Corporation, and the documents relating to his efforts to obtain modified employment.

[149] For the foregoing reasons, Mr. Kalair’s request to further adjourn the hearing of Ms. Kabir’s motion to dismiss his Motions to Change and his motion to have Ms. Kabir found in contempt is denied.

b. Should Mr. Kalair’s Motions to Change be struck out?

(i) General principles applying to motions to dismiss motions to change based on non-compliance

[150] The Court has broad discretion under Rule 1(8) of the FLR to deal with failure to obey a court order.

[151] Rule 1(8) of the FLA 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,

(a) an order for costs;

(c) an order striking out any … motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[152] It is a “well-established principle that in a family law case, pleadings should be struck only in exceptional circumstances, and where no other remedy would suffice”: Kovachis v. Kovachis, 2013 ONCA 663, at para. 2; Chiaramonte v. Chiaramonte, 2013 ONCA 641 at paras. 31-32; Wouters v. Wouters, 2018 ONCA 26, at para. 45. The same principle applies to an order striking out a motion to change, as such orders may have the similar effect of preventing a party from advancing their claim and may result in disentitling them to the relief they have sought.

[153] In Kovachis, the Court of Appeal allowed an appeal from an order striking the pleadings of a non-complaint party because the motion judge had failed to:

a) consider the substantial disclosure already made;

b) itemize what disclosure the party had failed to provide;

c) make a finding of willful disobedience of the order; and

d) consider proportionality (see para. 3).

[154] However, in Manchanda v. Thethi, 2016 ONCA 909, the Court found that the conduct of the appellant had been egregious and exceptional. At para. 13, it stated that: “Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

[155] In Roberts v. Roberts, 2015 ONCA 450, Benotto J.A. observed at para. 15:

The power to strike out pleadings is to be used sparingly and only in exceptional cases. This is such a case. The appellant’s conduct in ignoring court orders and failing to follow the basic principles of family law litigation put him in the exceptional category of cases where the judge’s discretion to strike his pleadings was reasonably exercised.

(ii) The legal test on a motion to strike pleading/dismiss Motion to Change

[156] In Van v. Palombi, 2017 ONSC 2492, at para. 30, the Divisional Court expressed the well-established, three-part test governing the exercise of judicial discretion to strike a party’s pleadings as follows:

a. Is there a triggering event justifying the striking of pleadings?;

b. Is it appropriate to strike the pleadings in the circumstances of the case?;

c. Are there other remedies in lieu of striking pleadings that might suffice?

[157] When considering whether it is appropriate to strike the pleadings, the following factors should be weighed:

a. The extent and persistence of the non-compliance: Horzempa v. Ablett, 2011 ONCA 633, at para. 7;

b. Whether the disobedience of the orders and rules was wilful in nature: Kovachis, at para. 3. Rule 1(8) was amended in 2014. While the question of whether a party’s actions have been willful has been removed as a factor to consider, Kovachis remains good law: Wouters, at para. 45;

c. Whether the non-compliant party made reasonable efforts to comply and can provide acceptable explanations for the breaches: Horzempa, at para. 6;

d. Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support: Higgins v. Higgins, 2006 ONCA 33303, 152 ACWS (3d) 96, at paras. 7-10; and

e. The remedy should be proportionate to the issues in question and the conduct of the non-compliant party: Kovachis, at para. 3.

(a) The triggering event

[158] In the present case, the non-compliance event that triggers the imposing of a sanction is Mr. Kalair’s non-compliance with:

a) the child support terms of the final Order dated April 26, 2013;

b) Kumaranayake J.’s Order dated February 1, 2019;

c) the multiple costs Order from May 10, 2011, to Jan. 14, 2016;

d) the disclosure orders of Kumaranayake J. dated August 9, 2019; of Fowler Byrne J. dated August 9, 2019; of Emery J. dated February 19, 2020; and of this Court dated July 12, 2021.

(b) Is dismissing the Motions to Change an appropriate remedy?

(i) Extent and persistence of the non-compliance

[159] Mr. Kalair’s non-compliance with the 2013 final Order has persisted for nearly a decade. Since the final Order was made in 2013, he has not made any voluntary support payments other than for the period between September 2015 and December 2017, when he made partial support payments of $625.00 per month, apparently to avoid incarceration pursuant to the Order of Parent J. dated July 21, 2015. Mr. Kalair stopped making any support payments in December 2017. As noted above, his arrears as of July 1, 2021, were $56,655.21. Although he alleges that he made additional payments of $10,000.00 directly to Ms. Kabir, “in lieu of support,” he has not produced evidence of such payments and they would not, in any event, relieve him of his legal obligations under the final Order.

[160] Mr. Kalair’s non-compliance with disclosure orders has persisted since March 1, 2019, one month after Kumaranayake J.’s Order of February 1, 2019, which required him to make financial disclosure within a month. As noted above, Mr. Kalair produced his Notices of Assessment from 2013 until 2015 and his T1 general tax return for 2016 but failed to produce critical portions of the disclosure that the Order dated July 12, 2021, required him to provide.

(ii) Did Mr. Kalair make reasonable efforts to comply or provide acceptable explanations for his breaches?

[161] Mr. Kalair has not made reasonable efforts to comply with the Court’s orders, either for support or costs or disclosure, nor has he provided acceptable explanations for his breaches. His explanation for not complying with his support obligations is based on his alleged decline in income following his 2013 motor vehicle collision and his assertion that he has since maintained himself by loans from family.

[162] The reasonableness of Mr. Kalair’s explanation could only be verified by the financial disclosure that he was ordered to provide, and he has failed to provide such disclosure. Ms. Kabir produced evidence that, if uncontradicted, would support a finding that Mr. Kalair has continued operating the company, Zero Mortgage Canada Corporation, that he operated before his accident.

[163] This Court, in its Order dated July 12, 2021, required Mr. Kalair to produce, among other things, the following:

a. Any and all documentation relating to the motor vehicle accident that allegedly occurred in or around March 2013 including;

i. All police reports related to the Applicant’s accident;

ii. All insurance claim/report related to the said accident;

iii. Mr. Kalair’s complete claims history with any car insurance provider that he has had, from March 2013 to present;

iv. All decisions and reasons received from ODSP since March 2013 with respect to any application, appeal, or change in status of ODSP benefits by Mr. Kalair;

b. Letter from Zero Mortgage Canada Corporation detailing start and end dates of employment, reason for termination, and details of any severance package received;

c. Job search History from April 13, 2013, to present, including:

i. Name and contact of Company and Position applied for

ii. Date of Application

iii. Interview request received (Y/N)

iv. If yes, Date of Interview

v. Result of Application

d. Updated Financial Statement;

e. Accounting of all gifts or loans received from 2013 to present (as he has alleged that he was only able to make payments due to gifts/loans), including:

i. Name and relation of Donor/Creditor;

ii. Amount gifted/loaned;

iii. Date of Gift/Loan;

iv. Supporting documentation;

v. If loan, have repayments been made.

k. Bank Account statements from any bank Mr. Kalair has an interest in, from March 2013 to present, including his Alterna account and BMO account.

[164] Mr. Kalair has failed to produce these documents to Ms. Kabir, which she first requested from him in a letter from her lawyer to Mr. Forget on February 15, 2019. It would be unfair, in these circumstances, to require Ms. Kabir to proceed to a contested trial of Mr. Kalair’s motions in January 2023 because this would allow him to rely on his bald assertions as to his incapacity and the discontinuance of his business while depriving Ms. Kabir of the means she requires to challenge his assertions with records which only he possesses or is able to secure.

[165] Notwithstanding Mr. Kalair’s failure to provide full financial disclosure, Kumaranayake J., on February 1, 2019, with the consent of Ms. Kabir, made a temporary reduction in Mr. Kalair’s support obligations by terminating spousal support and reducing his child support payments to $197.00 per month, based solely on the ODSP benefits of $15,400.00 per year. Yet, Mr. Kalair failed to pay even these reduced child support amounts, and his arrears continue to accrue.

[166] At the hearing of these motions on September 28, 2022, Mr. Kalair argued that he had, in fact, paid the reduced child support amounts by means of an agreement between ODSP and the FRO. He pointed to the FRO Statement of Arrears dated June 15, 2021, which showed “FOAEA diversions.” The Order of this Court dated July 12, 2021, required Mr. Kalair to produce his ODSP file, but he failed to do so.

[167] In Canada, the enforcement of family orders (parenting and support) is a provincial responsibility. Until 1986, no federal provisions existed to help trace missing persons or those who had breached support agreements. With the passage of the Family Orders and Agreements Enforcement Assistance Act, R.S.C., 1985, c. 4 (2^nd Supp.) (“FOAEA Act”) in January 1986, the Federal Government established the legislative framework for providing a tracing information service to assist in the enforcement of family orders, agreements and Criminal Code charges (see: Department of Justice Canada, Impact of Adding Revenue Canada Databases Under FOAEA-Part 1 Tracing For Locating Persons Final Report, Department of Justice Canada, 2005 Docs 499, https://canlii.ca/t/t1q1, retrieved on 2022-10-31).

[168] The primary objective of the FOAEA Act is to help provinces improve the rate of enforcement of maintenance orders and agreements in Canada. As federal/provincial/territorial agreements are essential to the implementation of the Act, Memoranda of Understanding set the terms and conditions for release of data from federal information banks, designate retrieval sources and recipients, and delineate confidentiality provisions.

[169] Under the FOAEA Act, diversions are a form of enforcement by garnishment: Pucaru aka Vacaru v. Purcaru, 2019 ONSC 1205, per Kiteley J., at para. 20(c). It was only because Mr. Kalair failed to comply with Kumaranayake J.’s consent Order for reduced child support, that the FRO garnished his ODSP benefits.

(iii) Is the remedy of striking Mr. Kalair’s Motions to Change proportionate to the issues and to Mr. Kalair’s conduct?

[170] The proportionality of dismissing Mr. Kalair’s Motions to Change must be viewed in relation to the changes Mr. Kalair seeks in each of his Motions to Change, namely:

a) his motion to terminate spousal support

b) his motion to terminate or reduce child support

c) his motion to expand his parenting.

[171] About his obligation to pay spousal and child support, I make the following findings:

a. On February 1, 2019, on the consent of the parties, Kumaranayake J. terminated spousal support and reduced child support to $197.00 per month, based on Mr. Kalair’s then acknowledged annual income of $15,400.00, consisting entirely of ODSP benefits.

b. The final Order dated April 26, 2013, was based on Minutes of Settlement that the parties, both represented by counsel, had signed three months earlier. April 26, 2014, was the first anniversary of that final Order. As of that date, $54,315.29 had accrued, according to the FRO Statement of Arrears that Ms. Kabir attached to her Affidavit dated July 15, 2021. The arrears that Mr. Kalair would have owed at that time, based on the child support amount of $197.00 per month that the parties later agreed to before Kumaranayake J., was $4,207.00, rather than $54,315.29.

c. Up to April 26, 2013, which was the earliest date this Court would have adjusted his support obligations, Mr. Kalair owed costs of $9,000.00, consisting of the following:

(i) $1,000.00 ordered by Lemon J. dated May 10, 2011;

(ii) $3,000.00 ordered by André J. dated January 11, 2013; and

(iii) $5,000.00 ordered by this Court dated April 26, 2013.

This does not include the further costs of $750.00 each that the Court ordered Mr. Kalair to pay on September 11, 2015; and January 14, 2016, after the first anniversary of the final Order.

d. Ms. Kabir proposed at the hearing that this Court, in its Order dismissing Mr. Kalair’s Motions to Change, reduce her claims to these amounts, as of April 26, 2014, and ongoing child support in the amount of $197.00 per month from May 1, 2014, onward.

e. Dismissing Mr. Kalair’s Motions to Change, in so far as they seek to have him added as a co-trustee of the Kalair Children’s Trust, would not be disproportionate or unfair to him. I find that the parties agreed in 2013 to establish the Trust for the children’s educational and other special needs. The Minutes of Settlement that the parties signed on January 11, 2013, and the final Order made on April 26, 2013, provided that Ms. Kabir would fund the Trust entirely with half of the proceeds of sale of the matrimonial home, as part of the settlement of her claim for equalization of the parties’ net family property. The eldest two children are now the sole trustees of that fund, which continues to exist for the benefit of the youngest child, H.I.B.K. It is in the children’s best interests, and consistent with the parties’ original intentions, that the Trust continue to be managed as it is.

[172] Ms. Kabir’s proposal that the Mr. Kalair’s arrears be reduced to reflect his income from disability benefits, as the parties agreed upon before Kumaranayake J. on February 1, 2018, significantly reduces the adverse consequences to Mr. Kalair of dismissing his Motion to Change his support obligations under the final Order and his claim for a refund of alleged over-payment. I find that Mr. Kalair’s claim for spousal support has no reasonable prospect of success, having regard to the length of the parties’ marriage, the date of their separation, their respective incomes, and the Spousal Support Advisory Guidelines. For the reasons stated in the preceding paragraph, I find that Mr. Kalair’s claim to be added as a co-trustee on the Kalair Children Trust also has no reasonable prospect of success. For all of these reasons, I find that dismissing Mr. Kalair’s Motions to Change on the ground of his non-compliance with both the support orders and the orders for financial disclosure to be proportionate to the issues in this case.

[173] I have considered the alternative remedies for Mr. Kalair’s non-compliance. For the reasons that follow, I find that none of them are adequate or in the interests of justice in the circumstances of this case.

[174] In Chiaramonte, Tulloch J.A. overturned a decision of this court granting a motion striking pleadings for lack of disclosure. Tulloch J.A. stated, at para. 31:

In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6^th), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system…

[emphasis mine]

[175] When considering other remedies in lieu of striking pleadings, such remedies include an adjournment to provide the Respondent with more time to effect disclosure (Mullin, at para. 46); striking the Respondent’s pleadings on financial issues and allowing him to continue on the parenting issues (Sleiman v. Sleiman, 2002 ONCA 44930, at para. 2); and/or inviting the Applicant to seek an adverse inference at trial if material disclosure remains outstanding (Purcaru v. Purcaru, 2010 ONCA 92, at para. 58).

[176] In the present case, none of the alternative remedies would satisfy the interests of justice. To adjourn the trial would further delay Ms. Kabir’s motion, which she made five years ago, on March 10, 2017, and Mr. Kalair’s Motions to Change, which he made more than seven years ago, on March 3, 2015. It would prolong the stay of the Motions to Change, which Seppi J. ordered at the Settlement Conference six and a half years ago, on May 12, 2016.

[177] As noted above, the next available dates for long motions are more than six months in the future, in July 2023. The effect of postponing Ms. Kabir’s motion to dismiss Mr. Kalair’s Motions to Change would be to delay the trial of his motions for at least a further year, to May 13, 2024.

[178] Mr. Kalair still has not:

• retained a lawyer;

• retrieved his files from Mr. Rowe;

• served the documents that he said Mr. Rowe had prepared on his behalf and tried unsuccessfully to file with the Court; and

• filed them with the Court himself.

He has offered no satisfactory explanation for his delay.

[179] Miller J. explicitly directed, in her endorsement on June 13, 2022, that the motions would proceed now, peremptory to Mr. Kalair, whether or not he had a lawyer. To order a further adjournment would result in a further delay until May 13, 2024, the earliest when a long motion can now be heard. In these circumstances, it would be highly unfair to Ms. Kalid to adjourn the motions further, and such an adjournment, as well as the ensuring delay, would tend to bring the administration of justice into disrepute.

[180] Striking Mr. Kalair’s pleadings on financial issues would have the same effect as dismissing his Motion to Change the support terms. So would directing that an adverse inference be drawn from Mr. Kalair’s failure to provide financial disclosure.

[181] The only effect of these alternative remedies would be to permit Mr. Kalair to proceed with his motion to change the parenting terms of the final Order. I am mindful that the Court of Appeal noted in Haunert-Faga v. Faga, 2005 ONCA 39324, 20 R.F.L. (6th) 293 (Ont. C.A.) at para. 7 that: “Generally, it is preferable to avoid the sanction of striking pleadings where children’s interests are involved.”

[182] In Correa v. Demke, 2011 CarswellOnt 14142, 2011 ONCJ 666, at para. 21, E.B. Murray J. of the Ontario Court of Justice stated:

An order striking the Respondent’s pleadings would effectively result in the dismissal of his motion to change. He would have no right to participate in the case. The striking of pleadings is a measure of last resort, which should only be used if default is deliberate and demonstrates a clear disregard for the court order. [citation omitted] When the basis for the motion to strike is non-payment of support, I must be satisfied that the payor has an ability to pay the order. [citation omitted]

[emphasis mine]

[183] In the circumstances of this case, I find, based on the Voice of the Child Report, that Mr. Kalair’s motion to change the final Order and impose a new parenting schedule has no prospect of success. No Order directing parenting, at this point, would prevail over the children’s adamant refusal of contact with Mr. Kalair and would only exacerbate their emotional turmoil.

[184] The Court must decide the best interests of the children on all of the evidence and the appropriate legal principles, and not abandon that decision to an assessor: Dunnett v. Punit, 2006 ONCJ 442, 32 R.F.L. (6th) 446, at para. 7. The best interests of the children are not necessarily the same as the wishes of the children or of the parents: Kaplanis v. Kaplanis, 2005 ONCA 1625, 10 R.F.L. (6th) 373 (Ont. C.A.). Rather, the Court must consider what is best for the children both now and in the long term.

[185] In family litigation, children’s evidence may be admitted as hearsay if it is necessary and reliable. The reliability test is met when a) the evidence is not objected to, b) the child has said the same thing to more than one lay witness, or c) has made statements to someone who has demonstrated skill in interviewing children: Hartland v. Rahaman, 2001 ONSC 28160, 22 R.F.L. (5th) 310 (Ont. S.C.); S.R. v. M.R., [2002] O.J. No. 1519 (S.C.); Stefureak v. Chambers, 2004 ONSC 34521, 6 R.F.L. (6th) 212 (Ont. S.C.); and Zaidi v. Qizilbash, 2014 ONSC 201.

[186] These cases also indicate that the weight given to the statements of children depends on such things as the mental and physical age of the child, the circumstances of the taking of the statement, the risk that the child was influenced or manipulated, the risk that the statement was edited or manipulated, and the desire of the child to please the parent taking or requesting the statement. Where influence is likely, the statements should be given little weight (see cases cited in the paragraph above and Norland v. Norland, 2006 CarswellOnt 8253, [2006] O.J. 5126 (S.C.); Kennedy v. Sinclair, 2001 ONSC 28208, 18 RFL (5th) 91 (Ont. S.C.); and A.G.L. v. K.B.D., 2009 ONSC 943, 93 O.R. (3d) 409 (S.C.) (“A.G.L.”).

[187] Necessity is met when it would be inappropriate to call the child as a witness: Wilson v. Wickham, 2018 ONSC 2574, paras. 28 to 31, and especially para. 29. In this case, I did not hear directly from either of the children and am satisfied that their voice has been effectively heard by means of the two successive Voice of the Child Reports and the submissions of the Children’s Lawyer.

[188] The best expression of a child’s views and preferences is that elicited through and by trained professionals: Woodhouse v. Woodhouse, 1996 ONCA 902, 29 O.R. (3d) 417 (C.A.); Forte v. Forte, 2004 ONSC 7631, [2004] O.J. No. 1738 (QL). Usually, Courts give great weight to the OCL’s evidence. The OCL’s clinicians are highly trained in determining the views of children. Their evidence is not binding on the Court, but deserves serious consideration because it results from extensive interviews and first-hand information: Fawcett v. Richards, 2009 CarswellOnt 3229 (S.C.J.), at para. 36; and Collier v. Campbell, 2013 BCSC 825.

[189] The Court gives little or no weight to the OCL’s evidence where the evidence is:

a) outdated such that the conclusions reached have been made unreliable because of events transpiring since the report was released,

b) biased,

c) uses poor methodology,

d) uses incorrect or improper assumptions,

e) contained limited or incorrect evidence, or

f) reached conclusions that are inconsistent with objective evidence.

Wilson v. Wickham, 2018 ONSC 2574, at para. 37. None of those defects is present here.

[190] As noted above, the Voice of the Child Reports stated that when exercising access with Mr. Kalair, H.I.B.K. and H.K.B.K. had experienced emotional trauma and abuse. Both children clearly, strongly, and independently said that they did not want to have further parenting time and contact with their father. 10-year-old H.I.B.K. said that she did not feel welcome at her father’s home. She added that there was never any food and that she had to fend for herself and make her own food when no one was in the kitchen. She spoke of being upset and crying prior to access visits.

[191] In Kovachis, Laskin J. A. found that Mr. Kovachis had made substantial compliance and that his pleadings should be reinstated. Laskin J.A., too, quoted with approval from Purcaru v. Purcaru, 2010 ONCA 92 saying that a party’s pleading should only be struck in exceptional circumstances (see para. 24).

[192] In Higgins, the Court of Appeal stated, at para. 7:

In our view, the motion judge was correct in concluding that she should consider the appellant’s ability to make all of the payments required under the January 25, 2006 order. Because the January motion judge did not make a specific finding concerning the appellant’s ability to pay immediately the retroactive arrears of child and spousal support created by his order and the lump sum s. 7 expenses, it was necessary that the motion judge determine that issue before making an order that might effectively end the appellant’s right to participate in the proceeding.

[emphasis mine]

[193] In the present case, I find, beyond any doubt, that Mr. Kalair was able to make at least the support payments in the amount established by Kumaranayake J., with Mr. Kalair’s consent, on February 1, 2019, based solely on the ODSP benefits he receives. His failure to pay even that minimal amount of child support demonstrates an egregious and willful refusal to comply with his support obligations and justifies the exceptional remedy of dismissing his Motions to Change.

c. Should Ms. Kabir be found in contempt?

[194] Rule 31 of the FLR governs contempt of court proceedings and possible orders upon a finding of contempt. Rules 1(8) and 1(8.1) of the FLR provide the Court with options to deal with a party failing to obey an order in the case or failure to follow the FLR. The Court has a varied selection of possible orders, which range from dismissing a claim or striking a pleading to, in the context of contempt, incarceration. Ultimately, the Court must be mindful of the primary objective of the FLR: to deal with cases justly (see: Rule 2(2)).

[195] In A.G.L., the Court said at para. 30 that in relation to each of the alleged breaches, the Court must make the following findings:

That the relevant order was clear and unambiguous;
The fact of the order's existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
That the respondent was given proper notice of the terms of the order (see: Haywood v. Haywood, 2010 ONSC 5615, [2010] O.J. No. 4317 (QL) at paras. 41-43).

[196] I am mindful of the following principles regarding contempt in the context of a family law proceeding:

a. Contempt is a serious remedy and is not to be granted lightly: see Fisher v. Fisher, 2003 ONSC 2119, [2003] O.J. No. 976 (QL) at para. 11; Perna v. Foss, 2015 ONSC 5636, at para. 12.

b. Contempt is a remedy of last resort, one which should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order: see Prescott-Russell Services for Children and Adults v. G.(N.), 2006 ONCA 81792, 82 O.R. (3d) 686 (Ont. C.A.) at para. 27; Hefkey v. Hekfey, 2013 ONCA 44; and Children’s Aid Society of Ottawa v. S.(D.), 2001 ONSC 28152, [2001] O.J. No. 4585 (QL) – as cited in Perna at para. 12.

c. Great caution should be exercised when considering contempt motions in family law cases: Hefkey at para. 3.

[197] The Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 addressed the law of civil contempt and held that proof beyond a reasonable doubt of an intentional act or omission that was in breach of a clear order of which the alleged contemnor had notice was required to establish civil contempt.

[198] In Ruffolo v. David, 2019 ONCA 385, the Ontario Court of Appeal articulated the following at paras. 18 and 19:

We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:

The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]

Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.

[199] In Godard v. Godard, 2015 ONCA 568, [2015] O.J. No. 4073 (QL), the Court of Appeal addressed the issue of how parents might approach dealing with older children and having them comply with court orders as follows:

Although a child's wishes, particularly the wishes of a child of S.'s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": (citations omitted)
No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant's failure to do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".

[Emphasis added]

[200] In Jackson v. Jackson, 2016 ONSC 3466, Chappel J. provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:

a) It ultimately remains a matter for the court’s discretion;

b) Because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;

c) It cannot be reduced merely to a mechanism for enforcing judgments;

d) It should be used sparingly and as a measure of last resort where there are no other adequate remedies available;

e) It is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted; and

f) The complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

[201] In Jackson, at paras. 63(c) and (d), Chappel J. explained that a parent’s positive obligations “goes beyond simply accommodating it [parenting time], making the child available for parenting time and encouraging the child to comply. Rather, the parent must require that parenting time occur and actively facilitate it.” Further, Chappel J. explained what actively promoting and facilitating means, as follows:

d) Actively promoting and facilitating compliance with a custody and access [order] requires the parent to "take concrete measures to apply normal parental authority to have the child comply..." (Godard, Supra.; Wright v. Meyer, 2012 CarswellOnt 14827 (S.C.J.)). In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:

i. Did they engage in a discussion with the child to determine why the child is refusing to go?

ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?

iii. Did they offer the child an incentive to comply with the order?

iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order?: Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (Ont. S.C.J.))

[202] In Villeneuve v. Wilson, 2022 ONSC 2886, Abrams J. wrote:

What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child. Usually, passive “reasoning with the child” is insufficient and is in breach of the access order. There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child: Geremia v. Harb, 2006 ONSC 38350, at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.) at paras. 22-25, Godard, supra, at para. 29.

Applying the principles to the present case

[203] In his affidavit sworn July 31, 2018, in response to Ms. Kabir’s motion to dismiss his Motions to Change, Mr. Kalair stated that in the previous two years, his access had deteriorated to the point where, in the previous year, he had only seen his youngest daughter for one week during winter break, and at the time of his affidavit, he only saw her once every two weeks, and sometimes less. He said that he was unable even to speak with his other children by phone. He states that his oldest son, who was 17 at the time of the affidavit, was ready to visit him during winter break with his sisters, but then Ms. Kabir had said that he could come only if Mr. Kalair paid for his ball hockey, which Mr. Kalair said he was unable to do. He asked for involvement of the OCL.

[204] In his affidavit dated October 5, 2018, Mr. Kalair stated that he wishes to thank the Judge for facilitating his access to his youngest daughter, H.I.B.K. He stated that he had her with him for close to two weeks in August (he says that he was supposed to have her for four weeks) and that they did many things together as a family. Mr. Kalair further stated that at the two mediation sessions with Peel Mediation Services, Ms. Kabir terminated the mediation and that both parties then consented to the OCL becoming involved.

[205] Mr. Kalair additionally states that since school started, he had had his daughter for only one weekend. He says that for two scheduled weekends, Ms. Kabir did not give H.I.B.K. to him. One reason she furnished, he says, was that she had a dentist appointment and the other was that the children were with her in Ottawa visiting her parents. He says that she did not abide by the access arrangement for August, September, and October and that his daughter with his new partner and his parents asked him when they would see H.I.B.K. again.

[206] In his affidavit sworn July 16, 2021, Mr. Kalair asserted that Ms. Kabir failed to comply with Kumaranayake J.’s access order dated February 1, 2019, which provided that he was to have access to his youngest two daughters including two weeks of summer vacation in July and two further weeks in August, in accordance with a request he was to make by April 1^st of the same year.

[207] Mr. Kalair stated that he did not exercise summer access in 2019 because of a miscommunication involving his previous lawyer and that he did not exercise summer access in 2020 because he was facing criminal charges, which were later dismissed. He stated that on March 30, 2021, his then lawyer, Roger Rowe, notified Ms. Kabir’s lawyer Sangar Duraiappah of his request for four weeks of summer access in July 2021, to no avail.

[208] On November 14, 2018, the OCL was asked by Van Melle J. to complete a Voice of the Child Report. On December 4, 2018, the OCL appointed a Clinician, Mahesh Prajapat, to interview the children and prepare the report. At the time Ms. Prajapat interviewed the children, H.K.B.K., who was 15 years old, had not seen her father for two years. H.I.B.K., who was 9 years old, had stopped attending visits with her father in September 2018, two months before the interview.

[209] The Report, which was completed on December 24, 2018, stated that when exercising access with Mr. Kalair, H.I.B.K. and H.K.B.K. had experienced emotional trauma and abuse. H.I.B.K. and H.K.B.K. clearly, strongly, and, in the view of the Clinician, independently, expressed that they did not want to have further parenting time or contact with their father.

[210] H.K.B.K. informed the Clinician that when her parents first separated, 7 to 8 years earlier, the parenting time with her father was manageable, but that after he re-married, he and her stepmother treated her very poorly. She added that when they had a child, who was 6 years old at the time of the interview, the situation worsened, as all their attention was focused on the baby and H.K.B.K. was left to fend for herself.

[211] H.I.B.K. informed the OCL interviewer that she did not feel welcome at her father’s home and stated that there was never any food. She had to fend for herself and make her own food when no one was in the kitchen. She spoke of being upset and crying prior to access visits.

[212] H.K.B.K. informed the Clinician that what was most upsetting for her was that her father tried to control her every move and every decision she made. She stated that "because I am a girl he makes me think I should be ashamed of myself and that I should wear a hijab, cover myself, have no friends or social life." H.K.B.K. explained that her father wants her to be something that she is not and that he is forcefuI in the manner in which he makes his views known about the fact that she is not a practicing Muslim.

[213] H.K.B.K. stated that her father had told her that, “You are not a good Muslim" and that "they should not let her influence their own daughter because they do not want their daughter to be like her". She further explained that, because of the way her father treated her, she was left feeling like she did not belong in their house and that she was not welcome there. She said that this was very upsetting and has become worse over time.

[214] H.K.B.K. further informed the Clinician that when she went for visits, her step-mother would not make eye contact with her, would not say hi to her, and would not feed her. She said that she was told there was food in the refrigerator and that she should make her own food, but there was nothing but bread and deli meat to make sandwiches and, as a result, she would never have a proper meal when in her father's care.

[215] H.K.B.K. added that when she would go to her father's home, she would also have to fend for herself in other ways. She described asking her father for tampons when she had her period and being ignored by him as he was too uncomfortable to deal with her request. As a result, she was forced to sneak into her step-mother's bathroom to take tampons from her step-mother's supplies. She described feeling scared of being caught and how her father did nothing to help her.

[216] H.K.B.K. stated that one of the most upsetting aspects of her visits with her father was hearing him telling his sister (H.K.B.K.’s paternal aunt) that H.K.B.K. was not a good daughter. She said she found this quite upsetting, explaining that her relationship with her aunt had been important to her and it was hard to hear her father speak about her in negative terms to his family.

[217] H.I.B.K. informed the Clinician that during her access time with her father, that summer, her father had taken her and a cousin to Canada’s Wonderland. She described being left alone by her father at a ride and being told to wait for him. She said that he did not return for hours and that she and her cousin became frightened and started looking for him. They tried his cell phone but he did not answer. They eventually found one another at the ride. H.I.B.K. explained that this was typical of how her father acted and that she always had to take care of herself when she was in his care.

[218] H.I.B.K., like H.K.B.K., described their father’s home as ''dirty." She said the kitchen had dishes and garbage, the bathroom was dirty, and there was no food in the home. H.I.B.K. said that ''in that house everyone has to fend for themselves.'' She explained that if her stepmother cooks, H.I.B.K. did not feel welcome to eat the food, so she went to her room and only came out when everyone else had left the kitchen.

[219] H.I.B.K. recalled being forced to read the Koran and having her arm pulled hard by her father when she did not read properly. She recalled the shower in the house not working and having to use a wrench to turn the water on and not being able to do this by herself and not receiving help from her father. She recalled having a birthday present taken away and given to her half-sister even though she wanted to keep it for herself and she recalled how often the house would smell when she went there.

[220] During her interviews with the Clinician, H.I.B.K. said that she was very happy and well in her mother's care and that she was not willing to see or spend time with her father. She was asked if there were any circumstances under which she would be willing to see her father and she replied no, that her father had upset her too often and that since she had stopped seeing him she felt better. She confirmed that her mother had encouraged her to attend visits with her father, but that she did not want to feel the upset again that she experienced in the past.

[221] On August 8, 2018, McSweeney J. refused to grant Mr. Kalair leave to make a cross-motion to have Ms. Kabir found in contempt of the parenting terms of the final Order, having regard to the Voice of the Child Report and the fact that, as she found, Ms. Kabir she was making efforts to comply with the parenting terms of the Order.

[222] McSweeney J. considered the Voice of the Child Report and referred to it in her Endorsement dated December 28, 2018. McSweeney J. suspended Mr. Kalair’s parenting time with the children, saying that the children had consistently, and for the same reasons, expressed their wish not to exercise parenting time with their father.

[223] The Endorsement of Kumaranayake J. dated February 1, 2019, incorporated a parenting time schedule, based on the parties’ Minutes of Settlement. The same Endorsement requested a second Voice of the Child Report to ascertain the views and preferences of the children as to their alleged desire to change their surname to that of their mother. This Report was completed on April 9, 2019, based on interviews conducted with the children in March. In their interviews, both children repeated their earlier wish not to have further contact with their father and confirmed that they wished to change their surname to that of their mother.

[224] The Report additionally noted that H.I.B.K. and H.K.B.K. wanted to change their last name to Kabir because they did not want to be associated with the last name Kalair. Both children gave the very same rationale, explaining that a Google search of their father's name brought up multiple stories about his criminal activities and they did not want to be associated with him.

[225] It is Ms. Kabir’s uncontradicted evidence, in her affidavit sworn September 9, 2021, that in the past, she has grounded the children and taken away their electronic devises, including their phones, because they refused to attend parenting time with their father. However, the children have been stubborn and unwilling to attend parenting time. Between 2019 and 2020, on three separate occasions, when H.I.B.K. attended parenting time with Mr. Kalair, she ran away and returned to Ms. Kabir’s residence. Mr. Kalair did not go looking for her on any of those occasions or send any messages to Ms. Kabir.

[226] Ms. Kabir additionally states that in letters dated April 12 and April 28, 2021, which she attached to her affidavit, her lawyer, Sangar Duraiappah, suggested to Mr. Kalair’s lawyer, Riddhi Agarwal, that H.I.B.K. and Mr. Kalair attend Family Reunification Therapy. Mr. Kalair suggested Tangerine Walk-In Counselling, a free walk-in counselling service. Ms. Kabir scheduled an appointment on or about June 10, 2021, for H.I.B.K. to attend at the initial session on her own and required her to attend, which she reluctantly did. However, during the initial session, H.I.B.K. confirmed to the counselor that she did not wish to continue counselling sessions with Mr. Kalair. The sessions therefore did not continue.

[227] On February 23, 2021, Stephen Beck was appointed by the OCL to act for the children of the marriage. Mahesh Prajapat was appointed as clinician on March 11, 2021. After conducting their investigation, Mr. Beck and Mr. Prajapat take the position on behalf of both children that their views and preferences should be respected by this court and they should continue to reside with their mother and not be subjected to any type of specified parenting time with their father at this time.

[228] They stated that H.I.B.K. and H.K.B.K.’s views and preferences were consistent throughout the meetings and were extremely strong and unequivocal. Both children were adamantly opposed to having any type of relationship with their father and would not agree to see their father at this time.

CONCLUSION AND ORDER

[229] Based on Mr. Kalair’s repeated delays of Ms. Kabir’s motion to dismiss his Motions to Change, his unjustified delays in retaining and instructing counsel, his non-compliance with the final Order for child support, even at the reduced amount arrived at on consent before Kumaranayake J. on February 1, 2018, his failure to make efforts to pay, in whole or in part, the costs orders made against him, and his repeated non-compliance with orders to make the full financial disclosure necessary to enable Ms. Kabir to respond to his Motions to Change, as set out above, it is ordered that:

The Applicant Father, Muhammad Omar Farooq Kalair’s request for a further adjournment of Ms. Kabir’s motion to dismiss his Motions to Change is denied.
Mr. Kalair’s Motions to Change are dismissed.
The final Order of this Court dated April 26, 2013, is varied in the following respects:

a) Mr. Kalair’s spousal support obligation shall be deemed to have terminated on April 26, 2014;

b) Mr. Kalair’s child support for their son shall be deemed to have terminated on April 26, 2014;

c) Mr. Kalair shall pay to Ms. Kabir arrears of support as of April 26, 2014, fixed in the amount of $4,207.00;

d) Mr. Kalair shall pay to Mr. Kabir, beginning May 1, 2014, child support in the amount of $197.00 per month for the support of the youngest two children, H.K.B.K. and H.I.B.K. until the children cease to be children of the marriage.

Mr. Kalair shall not bring any further proceeding against Ms. Kabir until he complies with all outstanding orders of this Court.
Mr. Kalair’s Motions to Change that were to be tried in January 2023 are dismissed, and the trial date in January 2023 is vacated.
Mr. Kalair shall obtain leave from this Honourable Court to file any further Motion to Change.
Family Responsibility Office enforcement shall be reinstated.
Mr. Kalair shall pay costs to Ms. Kabir in an amount to be agreed upon by the parties or fixed by this Court. If the parties are unable to agree on costs by December 16, 2022, they shall file written arguments, not to exceed 4 pages, and a Costs Outline or Bill of Costs, by the Court electronic portal and send a copy to my judicial assistant, Corry Allard, Corry.Allard@ontario.ca, by that date.

(Signature of Judge)

Price J.

Released: December 1, 2022

COURT FILE NO.: FS-10-70053-01

DATE: 2022-12-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MUHAMMAD OMAR FAROOQ KALAIR

Applicant

and –

SYMA DAHRAKSHAN KABIR

Respondent

REASONS FOR ORDER

Price J.

Released: December 1, 2022

Kalair v. Kabir 2022-ONSC-6786

Case Summary

INDEX

____________________________________________________________

NATURE OF MOTIONS

BACKGROUND FACTS

b) The practical consequences of granting the request

c) The need of the administration of justice to orderly process family proceedings

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 5