ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sara Trotta, Applicant (Moving Party on Motion)
AND: Dustin Kyle Chung, Respondent (Responding Party)
BEFORE: Kristjanson, J.
COUNSEL: Shawn A. Richard, Counsel for Applicant Dustin Kyle Chung, Self-Represented
HEARD: At Toronto by videoconference September 21, 2023
Endorsement
Kristjanson, J.
1This is a motion to strike the respondent father’s participation on financial issues because of the respondent’s conduct. The respondent has failed to comply with several court orders and the Family Law Rules. His conduct has caused delay and increased expense for the applicant. The respondent failed to file materials on the motion. I allowed him to make oral submissions. Those submissions largely consisted of unacceptable and racist attacks on the applicant’s lawyer, and unjustified objections to a proposed assessor and a therapist on the grounds of racial identity. The respondent, for now, will be allowed to participate on parenting issues, but all financial issues will be set down for an uncontested trial at which the respondent has no participation rights.
2The major issues on this motion are as follows:
(a) Should the court appoint Ms. Susan Lieberman as the s. 30 assessor, on the terms sought by the applicant?
(b) Should the court strike the respondent's Answer on financial, property and damages claims, and allow the applicant to proceed to an uncontested trial? Should the court allow the respondent to continue to participate on parenting issues?
(c) Should there be an order for therapy for the child?
Background Facts
3The applicant mother and the respondent father married in 2017 and separated in August 2022. They have a five-year-old child in senior kindergarten. The applicant started the Application in November 2022. The parties have already had two case conferences, two urgent motions, and now this motion. The respondent failed to file material on all three motions, and for at least one case conference. Ms. Trotta, though, has played by the Rules, and suffered for it. That is not how the family justice system is supposed to work.
Issue #1: Section 30 Assessor
4The applicant mother seeks to appoint Susan Lieberman to conduct a parenting assessment under section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), to replace Howard Hurwitz. Justice Akazaki appointed Howard Hurwitz as the s. 30 assessor. The respondent did not object to Mr. Hurwitz’s appointment. Following the appointment of Mr. Hurwitz, the respondent raised concerns based on anonymous online posts. The respondent engaged in threatening behaviour toward Mr. Hurwitz’s staff. Mr. Hurwitz resigned because of the respondent’s conduct.
5A section 30 assessment has already been ordered, so the court need not reconsider the issue. But the court must consider whether Ms. Lieberman should be appointed. Ms. Lieberman is highly qualified, and has been appointed as a s. 30 assessor before. She has consented to the appointment, and would complete the assessment in three months. The mother has agreed to pay for the assessment, subject to reallocation at trial.
6The father objects to the appointment of Ms. Lieberman on the grounds that she is Jewish, like the mother. His objection is that his daughter is Black. And that only an assessor who is Black would be appropriate. He later stated that the assessor must specifically be “Black Caribbean,” like him, or “Black Chinese Caribbean,” like him.
7The court does not appoint, or refuse to appoint, professionals based solely on their race. And it would be improper for a court to do so. Section 30 assessors are experts, appointed by the court, because of their technical and professional skills, to report on the needs of the child and the ability and willingness of the parties to satisfy the needs of the child. Assessors may use several methods to learn about the parents and the child, including interviews with the parents, observations of parent-child contact, interviews with third parties who have had significant involvement with the child, a review of records or reports about the child or the parents, and psychological tests.
8Given Canada’s diverse and multicultural society, assessors are called on to provide parenting assessments for parents and children with diverse cultural, linguistic, religious, and spiritual upbringing and heritage. There is, and should never be, a requirement that an assessor share the same upbringing or heritage. But being alert to what a child’s upbringing and heritage mean, in the context of parenting, is part of the technical and professional skills that will inform the recommendations. Both the Divorce Act and the CLRA require judges to determine parenting issues based on the best interests of the child, which includes a consideration of the child’s cultural, linguistic, religious, and spiritual upbringing and heritage. If the father participates in the parenting assessment, the father will be able to bring forward the issues important to him based on what he told the court is his identity as a Black Caribbean man.
9The father chose to file no materials. He did not propose an alternate assessor for the court to consider. I am satisfied that Ms. Lieberman should be appointed as the section 30 assessor, and may require psychological testing of the parents.
10The mother seeks an order that Ms. Lieberman be given authority to complete the section 30 assessment without the participation of the respondent. Under section 30(5) of the CLRA, the court may require the parties to attend for assessment by the person appointed by the order. I make that order. I also order that the assessment may continue if the father chooses not to participate. Since the father is self-represented, I advise him that there are significant consequences to a refusal. Section 30(6) of the CLRA provides that where a person ordered to attend for an assessment refuses to participate, “the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate.”
11That is, a trial judge may draw an adverse inference about the father’s willingness and ability to parent based on his refusal to participate in the assessment.
Issue #2: Motion to Strike the Answer
12The mother seeks an order under Family Law Rule 1(8) striking the respondent’s Answer on non-parenting issues, because he has breached court orders, failed to comply with the Family Law Rules, and failed to produce financial disclosure.
13The respondent has breached four orders in these court proceedings:
(a) the Form 8.0.1 Automatic Order (financial disclosure, breach of subparagraphs 5(a), (c), (d), (e), (g) and paragraph 6)
(b) the Order of Justice Kraft dated November 16, 2022 (to attend parenting mediation)
(c) the Order of Justice Kraft dated May 25, 2023 (to pay costs of $3,000 by May 26)
(d) the Order of Justice Akazaki dated July 21, 2023 (to answer request for information within 30 days).
14The analytical framework for a motion to strike under Family Law Rule 1(8) for non-compliance with court orders or Rules is summarized by Chappel, J., in “Striking Pleadings in Family Law – Part 1: Introduction and Overriding Principles”, 2019 CanLIIDocs 3941, set out in Sheresht v. Abadi, 2021 ONSC 1665 at para. 48:
a. First, the judge must be satisfied that there has been non-compliance (Mullin v.Sherlock, 2018 ONCA 1065, at para. 44). At this step, it is critical that the motion judge outline in detail their findings respecting the party’s non-compliance with any relevant orders or Rules (Kovachis v, Kovachis, 2013 ONCA 644).
b. Second, if the court is satisfied that there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case before the court. In undertaking this task, the court should consider and weigh the following factors:
i. The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633 (C.A.), at para. 7);
ii. Whether the disobedience of the orders and Rules was wilful in nature (Marcoccia, supra, at para. 13; Kovachis, supra at para. 3; Manchanda v. Thethi, 2016 ONCA 909, at para. 9);
iii. Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Chiaramente v. Chiaramente 2013 ONCA 641, at para. 37; Brisson v. Gagnier, 2014 ONCA 909 (C.A.), at para. 3;
Marcoccia, supra, at paras. 10-12; Horzempa, supra, at para. 6; Mullin, supra, at para. 45);
iv. Where the non-compliance relates to support orders, the payor's financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 CarswellOnt 5893 (C.A.); and
v. The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, supra, at para. 3; Manchanda, supra, at para. 9; Mullin, supra, at para. 49). It should not go beyond what is necessary to express the court’s disapproval of the conduct in issue (Marcoccia, supra, at para 14; Purcaru, supra, at para.49).
15I find that the respondent has failed to produce his financial disclosure as required by the Automatic Order, paras. 5(a), (c), (d), (e), (g) and paragraph 6, and Family Law Rule 13. In a case involving equalization of net family property, he has never served or filed a sworn Form 13.1 financial statement and supporting documents, or a Certificate of Financial Disclosure. He has failed to produce critical income information (complete income tax returns, including all schedules and attachments, for the years 2019 through to 2022), and financial information about his corporation (financial statements, breakdown of payments to non-arm’s length parties).
16The respondent breached both orders of Justice Kraft. He failed to attend the court-ordered mediation before Christine Kim. He failed to pay costs of the applicant’s motion in the sum of $3,000 by May 26, 2023. He breached Justice Akazaki’s order, which required parties to respond to Requests for Information within 30 days of receipt. The Request for Information was served on July 28, 2023. The response was due by August 28. There has been no response.
17I assess the factors set out in Sheresht v. Abadi:
(i) The extent and persistence of the non-compliance: The failure of the respondent to comply with court orders and the Family Law Rules is pervasive. He has failed to produce the most basic financial disclosure, despite repeated requests by the applicant. He did file a Form 13 Financial Statement with the Answer, but since equalization is in issue, was required to file a Form 13.1 Financial Statement. Despite repeated letters from counsel dated December 13, 2022, February 3 and February 21, 2023, and June 30, 2023, the respondent has failed to provide a sworn Form 13.1 financial statement and supporting financial disclosure in accordance with the Automatic Order and Rule 13 of the Family Law Rules. He failed to answer the Request for Information as required by Justice Akazaki’s order. He also failed to pay costs ordered by Justice Kraft.
(ii) Was there wilful disobedience of orders and Rules: The disobedience is wilful, not inadvertent, and has continued when given many opportunities to cure default.
(iii) Were there reasonable efforts to comply, and acceptable explanations for the breaches: The respondent chose to file no responding materials. There is no explanation. There is no evidence about any reasonable efforts to comply. In the absence of any responding material to explain the non-compliance or a concrete plan for compliance, there is no basis to exercise discretion in the respondent’s favour. Family Law Rule 2(3) requires the court to deal with cases justly by ensuring that the procedure is fair to all parties. The applicant has had to bring several motions, attend at conferences without the respondent’s Form 13.1 Financial Statement or corporate and personal income disclosure, and has incurred legal fees seeking basic financial disclosure. The procedure to date has been unfair to the applicant, who has been confronted with continuous and repeated non-compliance, significant delay, and spiraling legal fees. The respondent is abusing the court process.
(iv) If relating to support orders, the payor's financial circumstances and their ability to pay support: The non-compliance does not relate to child support.
(v) Proportionality to issues, not going beyond what is necessary to express disapproval: The respondent has flouted court orders and the Family Law Rules with impunity. He has failed to provide the most basic financial disclosure, almost a year into the case. The mother has incurred legal fees chasing financial disclosure, and has faced significant delay. A costs award remains unpaid. Faced with a motion to strike his Answer, the respondent filed no responding motion materials.
(vi) I consider the respondent’s pervasive, wilful conduct, and complete failure to make even basic, critical financial disclosure in the face of court orders and multiple demands from counsel. I consider the lack of explanation, and lack of evidence of any intention to comply. I find it proportionate and necessary to strike the respondent’s Answer on all financial, property, and damages issues. This includes the claims for equalization of net family property, damages, spousal support, and child support. The applicant may proceed to an uncontested trial, on Form 23C affidavit evidence, on financial, damages and property issues. The consequences of Rule 1(8.4) apply.
18But the respondent’s conduct is not yet at the point where he will be prevented from participating on parenting issues. Parenting issues must be decided in the best interests of the children. Participation of both parents is preferred, as explained in Burke v. Poitras, 2018 ONCA 1025 at para. 18:
Custody is to be decided based only on the best interests of the children. It follows that the utmost caution must be used before striking a party’s pleading as it relates to custody and access. A full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children: D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376, at para. 1.
19So long as the respondent complies with the Family Law Rules and court orders, he will be allowed to participate in the trial on parenting issues involving parenting time and decision-making responsibility. This starts with his obligation to pay the $3,000 outstanding costs from Justice Kraft’s order, and the costs of this motion. It also starts with filing conference briefs and other required documents for conference attendances, which the father has failed to do. And it starts with restraining himself from personal attacks on the applicant’s counsel, which will not be tolerated.
Issue #3: Therapy for Child
20The mother seeks an order that the child be allowed to participate in closed play therapy. Therapy would be in the best interests of the child, on the evidence. The father refuses to consent. He raised a similar objection to that raised regarding Ms. Lieberman, that the therapist isn’t Black. My reasons for appointing the therapist are the same. The court does not, and cannot, appoint or refuse to appoint professionals simply based on race. The father provided no evidence about a different, preferred therapist.
Issue #4: Conduct of Respondent
21In his submissions, the respondent made outbursts containing overtly racist and highly offensive comments based on applicant counsel’s identity as a racialized lawyer. This put a burden on counsel that he would not have faced otherwise, solely due to his race. This is unacceptable conduct by the respondent, which the court will not tolerate. Any repetition of such personal attacks on counsel, whether in correspondence or in open court, will be dealt with appropriately. I note that counsel dealt with the personal attacks with the utmost professionalism and dignity.
22The father had refused to provide his address to the mother, although he has the child for overnights. The motion was brought in part to compel the father to provide his address, or suspend parenting. The father was sworn in on the motion and gave his address. No order is therefore required.
Costs
23The applicant seeks costs of $18,186.22 on a full recovery basis, inclusive of HST. Costs orders are in the discretion of the court under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.
24This case requires a costs order to sanction and discourage the respondent’s behaviour. The primary reason for bringing this motion was to strike the father’s Answer on financial, damages and property issues for failure to make the required financial disclosure, and non-compliance with court orders. The secondary reason was the father’s failure to consent to the properly qualified section 30 assessor, and therapist, solely on the grounds of the race of each of the professionals. Yet the father filed no materials on this motion. Taken together, these actions constitute bad faith.
25On the issue of continuing failure to make financial disclosure in the face of obligations under the Rules and court orders, I agree with J.W. Quinn, J. in Trudel v. Trudel, 2010 ONSC 5177 at paras. 17-18, that where “a party adopts a catch-me-if-you-can approach to financial disclosure, thereby demonstrating bad faith, that fact overshadows everything else such that full-recovery costs should follow. Litigation in Family Court relies heavily on the timely and true disclosure of financial information,” and that the “financial non-disclosure of the husband amounts to dishonesty. This equates with bad faith. Thus, the wife is entitled to full-recovery costs on this basis alone.”
26The Bill of Costs is reasonable. The time and hourly rates are reasonable. The motion was necessary. And the respondent’s conduct has been unreasonable, and in bad faith. The respondent is to pay costs of $18,000.00 to the applicant by January 5, 2024.
ORDER
27The Order, set out below, does not contain the name and birthdate of the child, which must be contained in the issued and entered order:
Ms. Susan Lieberman is appointed to replace Mr. Howard Hurwitz as the section 30 assessor to assess and report to the court on the needs of the child, and the ability and willingness of the parties to satisfy the needs of the child. The assessment must be completed within 12 weeks. By section 30(5) of the Children’s Law Reform Act, the applicant, the respondent, and the child must attend for assessment by Ms. Lieberman if so requested, on the dates and times as required by Ms. Lieberman.
Ms. Susan Lieberman shall have the authority to arrange psychological testing of either parent. Ms. Lieberman shall have the authority to proceed with and complete the section 30 assessment without the participation of the respondent, Dustin Kyle Samuel Chung.
The applicant must pay the fees and expenses of the section 30 assessor, subject to the discretion of the court to re-apportion the costs of the assessment.
The child shall attend play-based therapy with Dorothy Koziorz, or another therapist of the applicant’s choosing if Ms. Koziorz is unavailable. The counselling sessions will be closed, and neither the counsellor nor the counsellor’s records will be admissible in a court proceeding. The applicant shall the pay the fees and expenses of the therapist. A copy of this decision shall be provided to the counsellor.
Under Rule 1(8), the Form 10 Answer of the respondent, Dustin Kyle Samuel Chung, dated November 24, 2022, is struck in its entirety, save for those paragraphs dealing with parenting time and decision-making responsibility.
The Applicant may proceed to an uncontested trial on all claims made by the Applicant in her Form 8 Application, on all issues other than parenting time and decision-making responsibility. The consequences of Rule 1(8.4) apply to the uncontested trial.
The Applicant shall file materials for an uncontested trial in writing on Form 23C affidavit evidence. Whether an oral hearing is required shall be left to the discretion of the presiding judge.
The respondent may participate only in the trial of parenting issues, and shall be entitled to participate in the Settlement Conference or Trial Management Conference on parenting issues only, subject to the discretion of the Conference judge, and subject to paragraph 9 of this order.
The respondent will have no right to participate in, or initiate, any step in this case, until he has paid all outstanding costs orders.
The respondent shall pay costs to the applicant for today’s motion in the amount of $18,000.00, inclusive of HST, by January 5, 2024
This Order bears post-judgment interest of 7 % from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of default.
The approval of the respondent to the form and content of the Order is dispensed with.
“Justice Kristjanson”
Released: December 15, 2023