Court File and Parties
Court File No.: FC-18-2325-1 Date: 2023/07/18 Superior Court of Justice - Ontario
Re: Diane Wendy McCallum, Applicant And: Orrett Fagan, Respondent
Before: Justice M. Fraser
Counsel: Cheryl Payette, for the Applicant Michael Rappaport, for the Respondent
Heard: December 1, 2022
Endorsement
[1] The Applicant mother, Diane Wendy McCallum (“McCallum”) brought this motion asking for an Order dismissing the Respondent father, Orrett Fagan’s (“Fagan”) Motion to Change.
[2] At the date of hearing, Fagan requested that a cross-motion be heard. That cross-motion and any materials supporting it were not served and filed in accordance with the Family Law Rules. I refused therefore to accept those materials.
[3] Fagan did not request an adjournment of McCallum’s motion.
Background
[4] The parties were in a relationship for one year. Their child, A.M. was born December 2008.
[5] McCallum has been the sole caregiver for A.M. According to McCallum, Fagan visited A.M. several times when A.M. was an infant. However, Fagan has not otherwise played a parenting role to A.M.
[6] Fagan initially paid some child support informally to McCallum. According to McCallum, these payments were irregular and completely stopped in 2018.
[7] McCallum commenced a court application in 2018. Fagan did not respond. That matter proceeded to an uncontested hearing before Audet J. on March 26, 2019. As a result, Fagan was ordered to pay both ongoing and retroactive child support and s.7 expenses for A.M.
[8] More particularly, Fagan was ordered to pay McCallum $1140. per month for ongoing support of A.M. based upon an estimated annual income of $129,200. Audet J. additionally ordered that Fagan pay McCallum $200 per month for A.M.’s ongoing special and extraordinary expenses.
[9] Audet J., the amount of arrears owed by Fagan to McCallum for child support for the period November 2011 up to and including March 2019 at $72,152. The arrears owed for s.7 special and extraordinary expenses was set at $16,989.
[10] No appeal of Audet J.’s order was made.
[11] The payment of child support was enforced through the Family Responsibility Office. Fagan has made no voluntary payments of support since 2018. The only amounts received by the Family Responsibility Office have been received as a result of Federal Support deductions and garnishments.
[12] In February 2020, Fagan forwarded correspondence to the Family Responsibility Office from his employer advising that he was no longer receiving a salary and that he had “taken leave” from the company.
[13] Fagan’s drivers’ licence was suspended in the summer of 2021.
[14] In September 2021, Fagan commenced this Motion to Change. By this Motion to Change, Fagan has disputed paternity of A.M. and alternatively, his ability to pay child support. When the Motion to Change was commenced, Fagan was granted leave on October 13, 2021, to commence the proceeding without delivering his income tax returns for the past three years provided that he files those returns on or before December 31, 2021.
[15] Those returns were not served or filed as ordered.
[16] A Case Conference was held on January 12, 2022. No brief was filed by Fagan. In disposing of the conference, Associate Justice Fortier ordered the following:
- The Case Conference was adjourned to March 24, 2022, to allow time to Fagan to retain counsel;
- Fagan was to provide, within 30 days, his 2018, 2019, 2020 income tax returns and notices of assessments and any re-assessments, proof of his current income from all sources, his Record of Employment from his former employer CGI, and if claiming an inability to work for medical reasons, satisfactory documentation to support his claim.
[17] Fagan provided his 2018 and 2019 Notices of Assessment.
[18] A further Case Conference was then conducted on March 25, 2022 before Justice Doyle. She found that Fagan had still not provided the disclosure required of him pursuant to the Family Law Rules and in accordance with Associate Justice Fortier’s order dated January 22, 2022. Doyle J. ordered, among other things, that Fagan produce that disclosure within 30 days and that, in addition, Fagan produce his 2021 tax return and Notice of Assessment when they became available. Doyle J. also ordered that McCallum be granted leave to bring a motion to dismiss Fagan’s Motion to Change in the event the financial disclosure was not provided as ordered.
[19] A paternity report dated March 29, 2022, was then received which confirmed that Fagan is the biological father of A.M.
[20] Fagan now asserts that he had been paying regular child support from 2011 to 2018 and disputes the arrears claimed by McCallum. By letter from his counsel to McCallum’s counsel dated April 12, 2022, he claimed, for the first time, that he had paid biweekly child payments for a total of $30,800. between November 2011 and December 2018.
[21] I note that the Motion to Change, as pleaded, is predicated upon his assertion that he was not the biological father of A.M. He maintains, in his Motion to Change at paragraph 13 that, “I had a brief incounter [sic] with the respondent and have not been given any knowledge of a child nor have I accepted any responsibility for a child. I have not communicated with the respondent since our brief encounter. I have also been suffering with cancer and no longer employed as of February 2020.” This pleading does not claim that payments had been made or base itself in any other way upon a material change in circumstances having occurred.
[22] As stated, no appeal was made of Audet J.’s findings which addressed and set those arrears.
[23] As at the date of this motion, given his ongoing non-payment of support, Fagan is in arrears to the extent of $115,000. dollars.
[24] McCallum asserts that Fagan has not complied with the disclosure orders and that he has produced only a fraction of what he was to produce. The two cost orders made against him at the Case Conference remain unpaid.
[25] Additionally, Fagan has not taken any steps to advance this Motion to Change. While he maintains that he has provided the disclosure required of him, none of the tax information ordered has been filed with the court. In other words, the notices of assessment that were to be filed by December 31, 2021, are still absent from the file.
Analysis
[26] The primary objective of the Family Law Rules is to enable the court to deal with cases justly. [1]
[27] The most basic obligation in family law is the duty to disclose financial information [2]. This requirement is immediate and ongoing. The failure to abide by this fundamental principle impedes the progress of the action, causes delay, and generally acts to the disadvantage of the opposite party. It impacts the administration of justice and stalls the ability to proceed to a final adjudication. [3]
[28] If a person fails to obey an order in a case the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, an order for costs; an order dismissing a claim; an order striking a motion to change; an order that the party is not entitled to any further order from the court unless the court orders otherwise; and a contempt order. [4]
[29] Where a party fails to comply with an order for income disclosure, the court may, strike out any of their pleadings; make a contempt order; and award costs in favour of the other parent up to an amount that fully compensates the other parent. [5]
[30] The legal principles governing the exercise of judicial discretion to strike a party's pleadings involves the application of a three-pronged test as follows:
(1) Is there a triggering event justifying the striking of pleadings? (2) Is it appropriate to strike the pleadings in the circumstances of the case? (3) Are there other remedies in lieu of striking pleadings that might suffice? [6]
[31] The power to strike out a party's pleadings should be used sparingly and only in exceptional cases. [7] In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice. As stated in Manchanda v. Thethi, 2016 ONCA 909, [8] "after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, wilful non-compliance must be considered egregious and exceptional", with the result that "[t]hose 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.
Is there a triggering event justifying the striking of pleadings?
[32] The respondent has failed to comply with the disclosure orders of October 13, 2021, January 12, 2022, and March 25, 2022, as well as the cost orders of January 12, 2022, and March 25, 2022.
[33] Given all of the circumstances set out above, and his failure to properly engage with the advancement of the proceeding, including his failure to file a conference brief, or respond to this motion in the manner required by the Family Law Rules, I find that these constitute triggering events that justify striking the respondent's Motion to Change. His disobedience with the orders is, absent any appropriate explanation, wilful and egregious.
Is it appropriate to strike the pleadings in the circumstances of the case?
[34] I find that it is appropriate in the circumstances of this case to strike the Motion to Change. This is a proceeding commenced by Fagan. It was incumbent upon him to fulfill the disclosure requirements required by the Family Law Rules. He has failed to properly comply with his disclosure requirements even in the face of a number of orders directing him to do so.
[35] Also, this must be considered with the fact that he has not even pleaded the issues he now raises as justification for his pursuit of the Motion to Change, he has persistently failed to comply with his obligations, he has failed to engage in this proceeding in a manner which would assist with its advancement, and he has failed to make even partial payments toward the cost orders.
Are there other remedies in lieu of striking pleadings that might suffice?
[36] The third step of the test is the examination of other remedies that might be appropriate in lieu of striking pleadings. The primary objective of this court is to decide cases justly. This includes the court enforcing its own orders and ensuring that parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.
[37] Given the respondent's wilful non-compliance, and the exceptional and egregious circumstances, including the length of time the non-compliance with the disclosure and cost, I do not find that any remedies other than striking the Motion to Change will suffice.
[38] With this in mind, I am prepared to grant the relief requested by this motion.
Disposition
[39] An Order shall issue therefore striking Fagan’s Motion to Change.
[40] Should the parties be unable to agree on costs, the Applicant may take written submissions as to costs within 15 days of the release of this endorsement. The Respondent shall have 15 days thereafter to respond. All such written submissions shall be no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bills of cost.
Judge M. Fraser Date: July 18, 2023