NEWMARKET COURT FILE NO.: FC-17-54393-00 DATE: 20240801 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Michael Whaling, Applicant AND: Marnie Whaling, Respondent
BEFORE: The Honourable Madam Justice A.M. Daurio
COUNSEL: James Bennett, Agent for the Applicant Sarah Strathopolous, Counsel for the Respondent
HEARD: July 10, 2024
Ruling on Motion
Brief Background:
1The parties were married on February 18, 2012, and they separated on August 19, 2017. They have one child of the marriage, namely D.B.W.
2Final Orders have been made in this proceeding and earlier this year the Applicant filed a Motion to Change (MTC) those Orders (discussed in more detail, below).
This Motion:
3The Respondent brought a motion seeking the following relief (in summary):
a. to strike the Applicant’s MTC dated February 22, 2024 in its entirety and dismissing all of his claims,
b. an Order that the Applicant is not entitled to any further Orders of this Court, and
c. an Order precluding him from taking any further steps in the proceeding (including motions and additional MTC).
4In the alternative, she seeks Orders that the MTC cannot proceed until the Applicant strictly complies with the terms of the current final Order, including paying the costs award totalling $159,533.73 (made after the trial) and an Order for $100,000 to be paid into trust as security for costs. She proposes that these steps must be completed by September 15, 2024, failing which, the MTC shall be struck.
5Justice MacPherson is the case management judge in this proceeding.
6On March 18, 2024, when this motion was scheduled, Justice MacPherson included a summary of this matter in his endorsement that this Court finds to be helpful and succinct, as follows:
This is the eighth case management hearing before me …
In May 2019 Sutherland J. completed an eight-day trial and, on November 21, 2019, released his Trial Decision. It is noteworthy that Justice Sutherland had the assistance of an assessment report completed by Allyson Gardner. Psychological testing of both parents was completed by Dr. Henderson.
Dr. Henderson noted that the Applicant’s personality configurations suggest narcissistic personality traits that include being self-centered, opinionated, confrontational, domineering, without care for the concerns of others. Dr. Henderson found the Applicant showed traits of deception and fraud and would have no concerns in being deceptive and fraudulent, if to do so was to his advantage.
Dr Henderson indicated that there did not appear to be any serious personality traits that would impact negatively on the Respondent’s abilities to parent a child. The personality configuration suggested features of an obsessive-compulsive personality disorder.
Included in his Order was provision for a Case Management Judge to be appointed by the Senior Family Court Judge in Newmarket to monitor compliance with the Order. I am the Case Management Judge.
At paragraph 89 of his reasons for decision, Justice Sutherland states:
The Court has an obligation to ensure that the terms of its orders are followed promptly and effectively. Failing prompt and effective compliance, will not be in the best interests of D.B.W., who would unquestionably suffer due to the further conflict and disagreements between his parents. I can foresee that if a case management judge is not appointed who understands the history of the litigation and the conflict between the parents, more proceedings / motions will be brought which could not only escalate the conflict and harm to D.B.W. but add costs to the judicial system in an inordinate amount of resources for a different judge to read and understand the extensive history and conflict and litigation between the parties.
This court has been unable to make any meaningful impact on the case. After seven years of litigation, a trial, a motion, and eight post-trial conferences, the issues remain exactly as Justice Sutherland noted them in 2019. There is no insight and no behaviour modification. This is scorched earth litigation and, sadly, D.B.W. is the unwilling victim.
The Applicant has failed to comply with court orders. He is in arrears of child support, spousal support, section 7 expenses and costs. Despite that in February 2024, the Applicant advanced a Motion to Change Justice Sutherland’s order in its entirety.
Justice Sutherland order included a costs Order against the Applicant following trial in the amount of $159,533.73. None of the costs have been paid. I am told that the Applicant has declared bankruptcy. It is noteworthy that he has not been discharged and, accordingly, the costs remain enforceable. The Respondent does not explain why he has not been discharged.
7On that date, the Applicant’s MTC was stayed by Justice MacPherson pending the hearing of this motion.
The Applicant’s MTC:
8On February 22, 2024, the Applicant filed a 122 page Motion to Change seeking to vary the Orders of Justice McDermot dated November 21, 2018 (support), Justice Sutherland dated January 21, 2020 (parenting) and Justice MacPherson dated December 6, 2021 (support).
9More specifically, he seeks to change Orders related to decision-making, parenting-time, child support, section 7 expenses, spousal support, contact (although it does not appear that any contact Orders were made previously), parenting covenants and costs.
10The detailed parenting Orders requested by the Applicant in his MTC effectively remove the Respondent’s name from most of the parenting terms made by Justice Sutherland and replace them with the Applicant’s name and delete terms in their entirety related to the school D.B.W. attends and the Applicant’s obligations regarding D.B.W.’s homework.
11The Applicant also seeks a shared parenting schedule, a variation from the primary care schedule Ordered by Justice Sutherland and changes (or deletions) of all terms relating to the holiday schedule and the removal of additional terms that the Applicant was required to comply with (such as therapy and his use of alcohol).
12He also seeks an Order deleting the appointment of a case management judge in this matter.
13Regarding support, the Applicant seeks changes to determinations of the parties’ respective incomes for child support purposes, including an Order that the Respondent’s income be imputed at $400,000 per year (the current Order imputed her income at $30,000 per year).
14He seeks to delete the spousal support Order made, but he did not provide an effective date for that termination to take effect (later in his MTC he lists September 1, 2022 as the effective date, however, he sought a deletion of the previous Order, not a termination as of a specific date – which is ambiguous and confusing).
15Finally, regarding support, the Applicant seeks to vacate the support Order made by Justice MacPherson on December 6, 2021, in its entirety.
16Additional Orders requested in the Applicant’s MTC include disclosure of documents from the Respondent dating back to 2011.
17The Applicant claimed in his MTC that he was granted leave of the case management judge to bring his MTC following a conference that took place on February 21, 2023. A review of the Endorsement of Justice MacPherson from that date does not support this claim.
18Justice MacPherson’s Endorsement speaks to the Applicant’s failure to comply with paying a costs award and states that the disclosure sought by the Applicant at that time was irrelevant.
19The Applicant claims that he became unemployed as of February 2023, and that this was the basis for the MTC relating to support.
20With respect to the parenting Orders, the Applicant claims that the child was recently diagnosed with “ADHD-PI” and a Learning Disability.
21He also makes several allegations against the Respondent that he believes warrant a change to the parenting plan while he claims to have met, or exceeded, all of the conditions and covenants imposed on him by Justice Sutherland’s trial Order.
22The Applicant claims that the allegations being made against him by the Respondent are malicious and false. The Applicant alleges that the Respondent has abused her sole decision-making authority with a “clear intent to control, restrict and…eliminate the Applicant” from D.B.W.’s life.
23The Applicant paints a picture of D.B.W. that is troubling. He claims that the child is not doing well in school and that he is being bullied.
24The MTC form invites a brief outline of the facts that form the basis for the Applicant’s requested changes. The Applicant’s outline is 62 pages long.
The Respondent’s Position at this Motion:
25The Respondent took the position that the Applicant is currently in breach of at least four Court Orders and that he is not coming to this Court with “clean hands.”
26The Respondent pointed to Justice Sutherland’s Reasons for Judgment that she says describes a longstanding pattern of egregious behaviour on the part of the Applicant.
27The Respondent alleged that the Applicant was lying in his motion material when he claimed to experience a 40% drop in his income in 2020. His Income Tax Returns showed that his income actually increased that year.
28The Respondent took the position that the Applicant has not established a prima facie case upon which to rest the claims as set out in his MTC.
29For example, he has not provided any evidence to support his claim that he lost his job nor the circumstances under which this occurred. He has not paid any voluntary payments toward support since June 1, 2023 and a review of the FRO Statement of Arrears filed shows that since 2019 the Applicant has consistently been in arrears of support in the thousands, sometimes tens of thousands of dollars. At the time of this motion, the FRO SOA stated that the balance of support owing as of June 1, 2024 was $90,868.06.
30Further, merely weeks after the trial costs award was made against him, he declared bankruptcy.
31At the time of the motion, the Respondent was still not a discharged bankrupt despite the bankruptcy Order being made in July 2022.
32It was the Respondent’s position that the Applicant is not entitled to bring a MTC and seek relief from the Court when he is in ongoing breach of Court Orders. It was her position that the breach applies to parenting claims and financial claims.
33The Respondent acknowledged that the parenting situation continues to be extremely difficult – however, it was her position that this was the result of the Applicant’s non-compliance with Justice Sutherland’s Order.
34She submitted that to allow a party such as the Applicant to proceed with his MTC would bring the administration of justice into disrepute and it would reward the Applicant’s egregious behaviour.
35The Applicant, she claimed, was not even paying support based on the income he currently claims to earn. As such, he is showing this Court, in no uncertain terms, that he is not willing to comply with any Orders that he disagrees with.
36The fact that the Applicant has not complied with current Orders to pay costs, to pay support nor has he complied with the terms of his bankruptcy Order, is clear evidence that no other remedies are available short of striking his pleadings.
37The Respondent pointed to the findings made by Justice Sutherland, that the Applicant went to trial “rolling the dice” and that he approached the case as though there were “winners and losers”, and with a scorched earth mindset.
38The Respondent claimed that the Applicant’s MTC was meritless on the record before me and that this is combined with a well-established pattern of non-compliance with Court Orders.
39It was the Respondent’s position that the Applicant has demonstrated, repeatedly, that he has no intention of complying with any Court Orders that he does not agree with.
The Applicant’s Position at this Motion:
40The Applicant had the assistance of an agent representing him at the motion. Unfortunately, the agent was retained on a limited scope basis, and he had not reviewed the Applicant’s 122 page MTC.
41The Applicant submitted that the caselaw relating to striking pleadings was focused on a party’s failure to provide disclosure in family law and he took the position that there was no allegation that the Applicant had failed to provide disclosure.
42The Applicant claimed to have provided disclosure to the Respondent regarding his employment situation and, at the same time, he claimed that the documents regarding his severance and termination in 2023 were not disclosable. He acknowledged that no supporting documents were filed nor provided to establish this claim.
43In any event, the Applicant took the position that the Respondent had not requested any disclosure and, in a bizarre twist, he claimed that a failure to comply with disclosure obligations set out in the Family Law Rules is not akin to failing to comply with an Order for disclosure that would attract the consequences of striking pleadings.
44Any breaches of Orders, the Applicant submitted, were directly related to his inability to pay support. He was an undischarged bankrupt at the time of the motion, and he claimed that he was not permitted to pay the outstanding costs award directly to the Respondent as a result of the bankruptcy proceeding.
45The Applicant was of the view that it was the role of the Family Responsibility Office to enforce support Orders and the only way that the Applicant could get himself out of his endless and problematic financial cycle is to bring a MTC.
46The Applicant filed a copy of his bankruptcy Order dated July 7, 2022 and acknowledged that he had not yet complied with any of the terms of that Order leading up to the motion before me.
47The Applicant also acknowledged that he continued to be employed at the time he declared bankruptcy and that his employment continued until January 2023. He has since resumed employment in June 2024, albeit with a lower income ($150,000 annually according to his Financial Statement).
The Law:
48The Family Law Rules (FLR) provide the Court with the authority to deal with people who fail to obey court Orders. Specifically, Rule 1(8) of the FLR provides a list of options for the Court that are not exhaustive, as follows:
Failure to obey order
(8) 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;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, 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) a contempt order, if sought under rule 31. O. Reg. 322/13, s. 1; O. Reg. 261/24, s. 1.
Failure to follow rules
(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.
Document that may delay or is inflammatory, etc.
(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. O. Reg. 322/13, s. 1.
(8.3) Revoked: O. Reg. 69/15, s. 1 (2).
Consequences of striking out certain documents
(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.
49Further, the Ontario Child Support Guidelines provide the Court with specific options where a person fails to comply with Orders as they relate to the payment of support, as follows:
Failure to comply with court order
- Where a parent or spouse fails to comply with an order issued on the basis of an application under clause 22 (1) (b), the court may,
(a) strike out any of the parent’s or spouse’s pleadings;
(b) make a contempt order against the parent or spouse;
(c) proceed to a hearing, in the course of which it may draw an adverse inference against the parent or spouse and impute income to that parent or spouse in such amount as it considers appropriate; and
(d) award costs in favour of the other spouse, an applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or assignee for all costs incurred in the proceedings. O. Reg. 391/97, s. 24.
50The caselaw is clear that a party, whose pleadings have been struck, are no longer able to participate in the case. Caldwell v. Caldwell, [2006] O.J. No. 1469 (OCA).
51In Roberts v. Roberts, 2015 ONCA 450, the Court of Appeal reinforced the notion that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. 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 also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled. Financial disclosure is automatic.
52In Norris v. Norris, 2019 ONSC 2795 at para. 20 the Court set out a three-step test governing the exercise of judicial discretion to strike a party's pleadings:
Is there a triggering event justifying the striking of pleadings?
Is it appropriate to strike the pleadings in the circumstances of the case?
Are there other remedies in lieu of striking pleadings that might suffice?
53In 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, at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as recognized in Purcaru, at para. 49:
The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.
54Pleadings in a family law proceeding should only be struck in “egregious and exceptional circumstances” which includes willful non-compliance with a court order to provide financial disclosure: Manchanda v. Thethi, 2016 ONCA 909, paras. 7 & 9. In making this assessment a court must consider: (1) the disclosure provided; (2) an itemization of the disclosure that the impugned party has failed to provide; (3) whether there has been willful disobedience; (4) proportionality. Owen v. Owen, 2018 ONSC 1083.
55Where children’s interests are involved, courts should avoid that sanction or use utmost caution in striking pleadings because the trial court needs participation of both parties and information that each can provide about best interests of the child. (King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, C.A.).
56The Court of Appeal noted in Haunert-Faga v. Faga, (2005), 20 R.F.L. (6th) 293 (Ont. C.A.) at paragraph 7 that: Generally, it is preferable to avoid the sanction of striking pleadings where children’s interests are involved. The reason for that admonition is simple – in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties (from King v. Mongrain).
57Where financial disclosure orders are violated, Courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman, 28 R.F.L. 5th 447 (Ont. C.A.).
58In Pearce and Kissoon, 2019 ONSC 4389 when considering a motion to strike a Motion to Change, the Court held that that:
27Different considerations apply…where it is the party in default who seeks to change a final order in which the best interests of the child respecting custody and access have already been determined. The admonition against striking pleadings (or staying proceedings) may not carry the same force where it is the defaulting party who seeks to invoke the jurisdiction of the court to vary an existing final order respecting custody and access and the non-defaulting party simply seeks to have the final order upheld. Subrules 2(2) and (3) of the Family Law Rules directs Courts to deal with cases justly, including to ensure that the procedure is fair to all parties.
28This is not to say that it is appropriate in all cases to stay a motion to change a final order for custody and access brought by a party in default of one or more court orders. The Court of Appeal has confirmed that the court has a discretion under subrule 1(8) to craft an appropriate remedy to address a failure of a party to obey a court order in the particular circumstances of each case.
59In Diciaula v. Mastrogiacomo, Justice Boswell addressed the issue of a defaulting party who brings a Motion to Change:
17Until the Respondent has committed himself to complying with the outstanding judgments against him, he should not be free to continue to inflict litigation expenses on the Applicant. That said, the Respondent has dug himself a significant hole. It may take him a significant period of time to dig himself back out. At some point, should he be able to demonstrate that he is making a concerted and genuine effort to comply with the outstanding court orders against him, and that he is prepared to act in the best interests of the children, he should be at liberty to pursue expanded access.
Analysis:
60For the reasons that follow, this Court is satisfied that the Applicant’s MTC must be struck in its entirety and that he is not entitled to seek further relief from this Court unless and until he 1) demonstrates a marked departure from his past behaviour; 2) complies with current Court Orders; and 3) he demonstrates a commitment to follow Court Orders in the future.
Is there a triggering event justifying the striking of pleadings?
61The triggering event that justifies striking the Applicant’s MTC is his blatant disregard for Court Orders. He has not only failed to comply with multiple Orders of this Court, but he has also failed to comply with the conditions of his bankruptcy Order.
62Furthermore, the Applicant’s claims relating to his financial situation were not supported by the record before me on even a prima facie basis. He provided no evidence to support his claim of termination from his employment. His claim that he cannot disclose this information is highly problematic and he did not explain to the Court how he intended to establish the circumstances around his unemployment absent such evidence.
63The change of employment status, in the Applicant’s submission, was the fundamental reason he needed to bring the MTC and the reason he has given for not complying with the costs or support Orders.
64The Applicant could have included in evidence for this motion to show that his termination/severance details were non-disclosable under any circumstances. He could have provided a letter setting out, for example, that the documents could not be disclosed even pursuant to an Order with strict terms restricting the use of the information, or a sealing Order. He failed to do this. He wants the Court to take him at his word.
65I am not satisfied on the record before me that the Applicant was unable to disclose any supporting documentation about the purported termination whatsoever, under any circumstances. His lack of effort to find creative ways around this alleged problem reinforces his ongoing approach to litigation as “rolling the dice” to see who wins and his complete disregard for the Court process.
66The Applicant’s own 2020 income tax returns contradicted his evidence at this motion, causing the Court to have significant concerns about his credibility.
67The Applicant is in arrears for support totalling approximately $90,000 and the outstanding costs award exceeds $150,000.
68The Applicant declared bankruptcy in 2020 (only a few weeks after the costs Order was made) and this would have released him from most debts and liabilities he was facing at that time.
69The Applicant continued to be employed throughout the bankruptcy proceeding, however, he chose to continue to engage in a pattern of delinquency as it related to his support obligations throughout that period of time (while he was making payments, the balance of the support arrears continued to exceed $10,000 between July 2019 to May 2023 and again between January 2022 to June 2024).
70The Court was not provided with any evidence to show that the costs award made had been included in the bankruptcy proceedings or that the Respondent had been put on notice, as an unsecured creditor, that the bankruptcy proceedings were underway. The only information provided to the Court about the bankruptcy was an Order made in 2022.
Is it appropriate to strike the pleadings in the circumstances of the case?
71It is clear and obvious to this Court that to strike pleadings in the circumstances of this case is appropriate. The Applicant has demonstrated a longstanding disregard for Court Orders. He is not voluntarily meeting any of his support obligations despite the fact that he claims he was only unemployed between January 2023 and June 2024. This does not explain why he was in significant arrears before January 2023 and does not explain why he has not paid even one dollar toward support since that time.
72The Applicant’s claim that he could not provide disclosure regarding the circumstance of his employment situation is not supported by any evidence. Further, he provided no evidence of any efforts to rectify this situation. Given his claim of “dire” financial circumstances, he has a positive obligation to engage in good faith efforts to obtain any and all evidence necessary to support such a claim.
73This Court is not satisfied that the Applicant has established on a prima facie basis that he had been unemployed during that period of time. There are many questions surrounding his employment situation and any severance package he may have received through his supposedly “non-disclosable” termination.
74The fact that the Applicant chose not to continue paying any voluntary payments toward his support obligations is evidence of a lack of good faith and evidence that Court Orders mean little to the Applicant. He does not take Court Orders seriously and he has shown this time and time again.
75Which brings me to the parenting issues. The Applicant’s request to change the final parenting Order in ways that would turn D.B.W.’s world upside down demonstrates to the Court that the Applicant’s approach to litigation has not changed since trial. He continues to pursue a zero-sum, scorched earth, “winners and losers” approach to parenting. He is gambling with his son’s life, again.
76Furthermore, as the Applicant has demonstrated such a striking disregard for Court Orders, the Court is of the view that he is simply ungovernable if he does not agree with the outcome.
77The Court expressed concern about the current circumstances involving D.B.W. This is exacerbated by the Applicant’s ongoing contribution to inflaming conflict and his decision to leave his son without adequate financial support despite his ability to pay something.
78The Applicant has work to do before he can come to this Court and seek relief. He must make efforts to bring himself into compliance with the Court Orders that are currently in place. He must demonstrate that he will do what he can to provide corroborating evidence relating to any change in employment status and income. He must show that he will not expect the Respondent to chase him down for such disclosure and he must show that he is making best efforts to financially support his son, as he has been Ordered to do.
79A claim of an inability to comply with a Court Order must be supported by forthcoming and ongoing disclosure, and good faith proposals for resolution. That disclosure and those proposals must be accompanied by genuine efforts to meet his financial obligations.
80To allow the Applicant to proceed with his MTC under the current circumstances would bring the administration of justice into disrepute and it would be a waste of judicial resources given the lack of supporting evidence he has provided.
81Furthermore, the Court is very concerned about the negative impact ongoing litigation will have on D.B.W. A concern noted by Justice Sutherland in his decision and the primary reason a case managing Judge was appointed to this matter.
82The Respondent will not be precluded from pursuing her own MTC if she is of the view that the current parenting Order is no longer consistent with D.B.W.’s best interests. She was granted sole decision-making authority and primary residence after a lengthy trial and protracted litigation.
83The Applicant would be wise to read the decision of Justice Sutherland, the reports of Dr. Henderson and Ms. Gardner, with a view to identifying where he has gone wrong and what he needs to do differently. The Applicant has demonstrated no insight, humility nor good faith in these proceedings.
84If the Applicant wishes to bring a MTC he must seek leave of the case management Judge. He shall not seek leave until he has complied with a number of conditions set out in my Order, below.
Are there other remedies in lieu of striking pleadings that might suffice?
85Given the above, it is clear that no other remedy would suffice in lieu of striking the Applicant’s MTC in these proceedings.
86In fact, the record before me demonstrates that the Applicant views himself as being beyond reproach and that Court Orders are meaningless to him.
87A costs award has been made and is left unpaid.
88The support arrears at the time of the motion were approximately $90,000 and the Applicant had not made one voluntary payment since June 2023. Not one dollar.
89The Applicant has had the benefit of a trial decision setting out exactly what he needed to work on to improve the situation for his son, and yet his pattern continues.
90The Applicant does not respect Court Orders.
91The Applicant could have, and should have, shown genuine efforts to work through the financial problems he alleges to have been faced with. I am not convinced that he cares very much about the financial situation he has left the Respondent in. On the contrary, his lack of any effort whatsoever in this regard confirms for this Court that he holds a significant level of discontent toward the Respondent and that his primary focus is on this litigation as a means to wear her down both emotionally and financially.
92Enough is enough.
93The only path forward for the Applicant is for him to start demonstrating a true and genuine commitment toward compliance with Court Orders.
Order:
This is a final Order made pursuant to the Courts of Justice Act.
94Pursuant to Rule 1(8) of the Family Law Rules, the Applicant’s Motion to Change dated February 22, 2024 is hereby struck in its entirety.
95The Applicant shall not be permitted to file any further Motions to Change without leave of the case management judge, Justice MacPherson.
96In response to any such request for leave, the Respondent may request an Order for security for costs.
97The Applicant shall not seek leave to file a Motion to Change until he has met all of the following conditions:
a. With the Applicant’s motion for leave, he shall serve and file a draft of his proposed Motion to Change. The narrative contained within the Motion to Change shall be limited to a brief outline of the facts upon which he relies and shall not exceed 12 pages, double spaced and using 12 point font.
b. The Applicant shall serve and file Affidavit evidence demonstrating that he has provided the Respondent with sufficient, corroborating, documentary, evidence to support any changes to his income/employment status and the circumstances around those changes.
c. The Applicant shall serve and file Affidavit evidence demonstrating that he has satisfied the costs Order dated June 1, 2020.
d. The Applicant has fully paid the following support arrears owing to the Respondent:
i. The arrears fixed as set out in the Order of Justice MacPherson dated December 6, 2021, and the accumulation of support arrears between the date of that Order and January 30, 2023; and
ii. Child support owing in accordance with the Child Support Guidelines and the Applicant’s claimed income between February 1, 2023 and the month preceding his motion for leave (without prejudice to the Respondent’s claims for arrears of child and spousal support over and above this amount). To be clear, this term shall not be interpreted to be a variation of the existing support Orders in this proceeding. This term is only a condition precedent for the Applicant to seek leave to bring a MTC.
e. The Applicant shall comply fully and in good faith with all existing parenting Orders made in this proceeding.
Costs:
98If the parties are unable to reach an agreement on the issue of costs, the Court invites written submissions on the issue, as follows:
a. The Respondent may file written submissions not exceeding 3 pages within 15 days of the release of this decision.
b. The Applicant may file written submissions not exceeding 3 pages within 25 days of the release of this decision.
c. Submissions shall be double spaced, using 12 point font.
d. The page limits do not include Offers to Settle or Bills of Costs, which should be attached.
e. Cost submissions shall be sent to my Judicial Assistant by email at nurit.suzana@ontario.ca and uploaded to Case Centre (formerly Caselines).
99If costs submissions are not received in accordance with the above timelines, no costs shall be payable to the applicable party.
The Honourable Justice A.M. Daurio
Date: August 1, 2024
