Maria Cooley v. Craig Cooley
COURT FILE NO.: FS-18-00002895-0001
DATE: 20240222
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MARIA COOLEY
AND:
CRAIG COOLEY
BEFORE: S. Shore, J.
COUNSEL: Meysa Maleki, for the Applicant
Laura Dyke, for the Respondent
HEARD: February 22, 2023
ENDORSEMENT
[1] The parties attended at a case conference today. For the reasons set out below, I am not prepared to proceed with the case conference until the outstanding three orders for costs, in the total sum of $31,735 plus interest, have been paid by the Respondent father.
[2] There is a long history in this case, which has been summarized in several prior endorsements. Therefore, I will only briefly touch on the relevant portions below. None of the facts below are in dispute.
[3] The parties separated in 2017. The parties’ two young children, both with special needs, primarily live with the Applicant mother.
[4] In 2020, an arbitration award was made by Stephen Grant, giving the Respondent parenting time on alternate weekends and one evening per week. The entire award was incorporated into an order of Faieta J., dated March 1, 2022. The award/order provides that the schedule can be reviewed as of October 2021. The Respondent is seeking a review of the parenting schedule as provided for in the award/order. The parenting schedule was to be conferenced before me today.
[5] But the parenting issue cannot be determined in a vacuum, ignoring the other aspects in this case.
[6] The Respondent has not paid child support since August 2022. The Respondent has also not paid his share of s. 7 expenses at least since that time. He owes over $250,000 in arrears. He has not paid the cost orders made against him and owes over $30,000 in costs.
[7] In a motion before Nakonechny J. in January 2023, the Respondent’s income was found to be $343,000, and his monthly child support obligation was set at $4,393 per month, plus he was ordered to pay his proportionate share of s. 7 expenses. His arrears of child support by that time, was more than $125,000. The Respondent had also failed to provide the disclosure required under the order of Kraft J., dated June 22, 2022.
[8] As such, the Respondent’s pleadings on all issues, except for the request by the Respondent to review the parenting schedule, was struck by Akazaki J. on April 27, 2023.
[9] The Respondent does not dispute that he is in breach of court orders. His position is that he has not complied with the court orders with respect to child support because the orders cannot be enforced against him because he lives in Pennsylvania. He therefore believes that the court did not have jurisdiction to make the orders. The Respondent’s mistaken beliefs have already been commented on by Justices Kraft, Nakonechny and Akazaki in their respective endorsements. All three found the court had jurisdiction to make the orders. He has still refused to pay child support as per the orders.
[10] The Respondent has also not paid any of the court costs ordered against him going back to June 2022, and as recently as May 2023. Costs have been ordered by Justices Kraft, Nakonechny and Akazaki, the last order being made following the order striking the Respondent’s pleadings. The Respondent owes total costs of $31,735 plus interest.
[11] Since the order was made, permitting the Respondent to continue with his relief regarding parenting, the Respondent has still not paid child support, has not paid any of the arrears owing and has not paid any costs. Almost ten months have passed since that order was made.
[12] It would bring the administration of justice into disrepute to continue moving forward on the relief being requested by the Respondent while he has ignored all court orders with respect to both child support and costs.
[13] The primary objective of the Rules is to enable the court to deal with cases justly. Dealing with cases justly includes ensuring that the process is fair to all parties: see r. 2(2) and (3). Permitting the Respondent to continue, forcing the Applicant to incur further legal fees, while ignoring the costs ordered is grossly unfair to the Applicant.
[14] Rule 1(7.1) permits a court to make certain orders at any time during a case, including imposing conditions on procedural matters as are just (r. 1(7.2)). Another order that can be made any time, is an order under r.1(8). If a party fails to obey an order in a case, the court may deal with the failure by making any order it determines necessary for the just determination of the matter, including an order:
(a) For costs;
(b) Dismissing a claim;
(c) Striking out an application;
(d) That the party is not entitled to further order of the court unless the court orders otherwise; and
(e) Postponing the trial or any other step in the case: r. 1(8).
[15] In parenting cases, the remedies available under r.1(8) need to be balanced with the direction from the Court of Appeal that where children’s interests are involved, the court should use utmost caution in striking pleadings because the trial court needs the participation of both parties and information that each can provide about best interests: see for example King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267, and Haunert-Faga v. Faga (2005), 2005 39324 (ON CA), 20 R.F.L. (6th) 293 (Ont. C.A.).
[16] I find that in this case, the Respondent’s failure to adhere to court orders and his refusal to pay child support go to the very question of the Respondent’s ability and willingness to act in the best interest of the children. He cannot ignore the financial needs of the children and then ask a court to accept that he is capable of acting in the best interest of the children if given increased parenting time with the children.
[17] The children have the right to child support, and they are aggrieved parties in this litigation as well.
[18] The Respondent has had an additional ten months to comply with the court orders. He failed to do so. The court cannot ignore continued and blatant breaches of court orders and consider granting orders requested by the Respondent without bringing the administration of justice into disrepute.
[19] There is no doubt or disagreement that the Respondent has failed to comply with several court orders. He has made no efforts to comply with the court orders. He has shown no willingness to comply with court orders. The Respondent has snubbed his nose at this court when he disagrees with court orders but wants the court to entertain the relief he now wants. This is not an option that should be entertained by the court.
[20] I have considered the various remedies available and what remedies would suffice. I have considered the primary objective of the Rules. I am not striking the Respondent’s pleadings on the parenting issues. I am staying the proceedings and requiring the Respondent to pay the court-ordered costs before permitting him to proceed to cause the Applicant to incur further costs. Whether this matter continues is entirely up to the Respondent.
[21] It will be up to another judge, with a motion before them, to determine if and when the Respondent’s pleading should be struck on a final basis.
[22] I am also permitting the Applicant to bring a motion for security for costs. Nothing in this order restricts the Respondent from participating fully in that motion.
[23] Order to go as follows:
(a) The proceedings are stayed pending payment of the outstanding costs by the Respondent to the Applicant in the sum of $31,735 plus interest.
(b) Nothing in this order restricts the Applicant from bringing a motion:
For security for costs; and
To strike the Applicant’s pleadings on the outstanding parenting issues.
(c) The Respondent shall pay costs of this case conference to the Applicant in the sum of $1,000. These costs shall be added to the costs owing set out in subparagraph (a) above, for a total payment owing of $32,735 plus interest.
S. Shore,J.
Date: February 22, 2024