Court File and Parties

COURT FILE NO.: FS-19-9115 DATE: 2024-08-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rhea Alana Mohamed, Applicant AND: Syed Farhan Fazal, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Jamie Ahn and Charu Chande, for the Applicant Syed Farhan Fazal, Acting in Person

HEARD: August 1, 2024

Endorsement

Nature of the Motion

[1] The applicant wife seeks an order striking the husband’s Answer pursuant to rule 1(8) of the Family Law Rules (“FLRs”), on account of his breaches of the Order of Horkins, J., dated May 17, 2019 (“Horkins Order”). She brings this motion, pursuant to the order of Diamond, J., dated May 28, 2024.

[2] The husband did not appear at the motion, nor did he serve or file responding material, despite being served with the wife’s motion materials on July 16, 2024 at 2:31 p.m.

Issues to be Determined

[3] The issues to be determined at this motion are as follows:

a) Is there a triggering event – Has the husband breached the Horkins Order?

b) If the answer to a. is yes, should I exercise my discretion under Rule 1(8) of the FLRs and strike the husband’s Answer?

Brief Background

[4] The parties were married on May 14, 2011. They have two children of their marriage, an 11-year-old son and an 8-year-old daughter. Both children reside with the wife in the maternal grandparents’ home.

[5] The husband immigrated to Canada from Pakistan in 2006 on a study permit to study Information Technology at Humber College. The wife was born and raised in Canada. Following the marriage, the wife began the sponsorship process for the husband. The wife was supporting the parties by working as an IT consultant.

[6] When the first child was born, the wife stopped working outside of the home. The parties decided that the children should be homeschooled. The wife homeschooled the children and continues to do so today.

[7] The husband developed a career as a computer engineer after he completed school.

[8] The parties separated on October 14, 2015. At this time, the wife was pregnant with the parties’ 2nd child. Due to threats made by the husband to the wife and child, the wife left the parties’ rental apartment with the two-year son and went to stay with her parents. The wife and children continue to reside with the maternal grandparents.

[9] The CAS has been involved with this family on three occasions. No protection proceedings were commenced, but there was risk of emotional harm acknowledged by the CAS because of conflict between the parties. The wife describes the marriage as her living with years of horrific abuse toward her by the husband. She describes being called denigrating names on a regular basis by the husband, the husband throwing objects and destroying furniture, and the husband being overcome with fits of rage, screaming for hours and threatening harm to her and their son.

[10] In January 2015, the husband physically assaulted the wife. The wife submits that their son witnessed family violence.

[11] Upon separation, the wife retained family law counsel and tried to arrange parenting time between the husband and children. The husband spent time with the children sporadically and would go for months at a time not seeing the children. During these times, the wife would not hear from the husband and have no knowledge of his whereabouts.

[12] In January 2019, after being absent from the children’s life for a year, the husband sought parenting time with the children through counsel. The wife facilitated the parenting time on alternate weekends in a public place with a member of her family present from 10:30 a.m. to 1:00 p.m. and on Wednesdays from 4:30 p.m. to 6:40 p.m. at the local library with her present. The children began to exhibit significant signs of anxiety before and after the parenting time with the husband.

[13] In March 2019, the wife retrained her current counsel and issues the within Application on April 3, 2019.

[14] The husband served and filed his Answer and Claim on May 3, 2019.

[15] The parties attended a case conference on May 19, 2019, at which a consent order was entered into by Horkins, J. (“Horkins Order”). Both parties were represented at the case conference. The consent order obliges the husband to pay the wife child support in the sum of $1,438 a month, based on his 2018 income of $97,258.28. After the Horkins Order was issued, the wife received the child support through the Family Responsibility Office (“FRO”) until April 2021. In April 2021, the wife only received $548. The FRO took steps to try and enforce the Horkins Order but were unsuccessful in reaching out to his last known employers, in trying to suspend his drivers’ license (as there was no license to suspend) and in their trace and locate procedure. The wife has not received any child support from the husband since April 2021.

[16] In 2019, the OCL conducted a parenting assessment and released its report on December 23, 2019. The final recommendations of the OCL were that the wife have sole custody (now referred to as decision-making responsibility), and a gradual integration plan be implemented between the husband and the children staring with telephone or video calls twice a week for 2-3 months, following by a one-hour supervised community visit with the children for 3-4 months, after which the family should assess the progress of the visits. The husband was encouraged to engage in parenting support.

[17] The last time the husband had any contact with the children was in September 2019.

[18] On January 23, 2020, the husband served a Notice of Change in representation and he has been self-represented since then.

[19] In February and March 2020, the wife’s counsel corresponded with the husband about the parenting issues. The last letter the wife’s counsel received from the husband was on March 25, 2020.

[20] On January 12, 2024, a Settlement Conference took place. The husband did not attend. At the conference, the wife was granted an order from Schabas, J. for substituted service of all court documents on the husband at his Gmail address. Schabas, J. also granted the wife temporary sole-decision making responsibility of the children and care and control of the children. Paragraph 7 of the Horkins Order was varied to permit the wife to travel with the children outside of Ontario without the husband’s consent.

[21] On May 28, 2024, a Trial Management Conference took place. The husband did not attend. Diamond, J. granted the wife leave to bring this rule 1(8) motion to strike the husband’s Answer on the basis that it would be more efficient for her and the Court for this matter to proceed by way of an uncontested trial rather than by way of a trial.

The Law

[22] The FLRs detail the consequences that may follow upon the party’s failure to obey a court order in a case. Rule 1(8) provides that:

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 a determination of the matter, including:

a) an order for costs;

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 the 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.

[23] A request for relief under Rule 1(8) entails the following three-step analysis as set out in KM v JR, 2024 ONSC 1338 at para 31:

(i) The court must first determine if there is a triggering event.

a. A triggering event exists when there has been non-compliance with a court order;

b. There is no requirement that the violated order was made on a motion, and it doesn't matter who obtained the order; and

c. As long as the court is satisfied that there has been a failure to obey an order "in the case or a related case" Rule 1(8) is triggered.

(ii) If there has been a triggering event, the court should then determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8).

a. The onus is on the non-complying party to show why it would be appropriate for the Court to exercise its discretion in their favour.

b. This discretion should only be exercised in the non-compliant party's favour in exceptional circumstances.

c. The court's decision as to whether or not to exercise its discretion in favour of the noncomplying party should take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party.

(iii) If the court determines it should not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under Rule 1(8). Relevant considerations include:

a. The proportionality of the sanction to the wrongdoing;

b. The similarity of sanctions in like circumstances;

c. The presence of mitigating factors;

d. The presence of aggravating factors;

e. Deterrence

Issue One: Is there a Triggering Event – is the Husband in Breach of the Horkins Order?

[24] The husband has failed to pay child support pursuant to the Horkins Order of $1,438 a month since April 2021, contrary to paragraph 3 of the Horkins Order. In addition, the husband has failed to provide annual updated income disclosure to the wife since May 2019, contrary to paragraph 8 of the Horkins Order. Accordingly, I find that there is a triggering event, calling Rule 1(8) into play.

Issue Two: What Remedy is Appropriate under Rule 1(8)?

[25] The next step is for me to determine whether it is appropriate for me to exercise my discretion in favour of the husband by not sanctioning him under Rule 1(8). For me to consider this, the husband has the onus to show why it would be appropriate for the Court to exercise its discretion in his favour. Further, exercising my discretion in the husband’s favour when there has been a triggering event requires exceptional circumstances. The husband has failed to serve and file responding materials to this motion. He has not met the required onus for the Court to consider exercising its discretion in his favour.

[26] Per Casullo J. in Nikfar v Nikfar, 2022 ONSC 1252, at para. 65, this Court should consider and weigh the following factors in the decision to exercise its discretion in favour of Syed by not striking his pleadings:

a) The extent and persistence of the non-compliance;

b) Whether the disobedience of the orders and rules was wilful in nature;

c) Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches;

d) Where the non-compliance relates to support orders, the payor's financial circumstances and their ability to pay support; and

e) The remedy should be proportionate to the issues in question and the conduct of the non-compliant party. [citations omitted]

[27] I find that the husband has demonstrated a total lack of respect for the litigation process and willfully disobeyed the Horkins Order. The husband consented to this child support and has willfully decided not to obey it. He failed to show up at the Settlement Conference or the Trial Management Conference. In essence, the husband has abandoned this court proceedings and the children without explanation. The husband has chosen not to participate in these proceedings or provide the court with an explanation as to his breach. There is no updated financial information before the court which reflects an inability on the husband’s part to comply with the Horkins Order. Taking into account the history of the litigation and the husband’s conduct, I am not persuaded that I should exercise my discretion in favour of the husband.

[28] I am now left with the broad discretion as to the appropriate remedy under r.1(8).

[29] According to Chappel J. in Levely v Levely, 2013 ONSC 1026, at para 15, where a party has “demonstrated a blatant and persistent disregard for the court process and court orders… and [h]is conduct has caused significant inconvenience and expense” for the other party, strong sanctions are “necessary in order to ensure that justice is done”. The husband has shown a blatant and persistent disregard for the court process by failing to respond to correspondence from counsel and court documents served on him and by not attending court proceedings. This has left the wife in the impossible position of having no choice but to try and move matters forward on her own. More importantly, despite knowing very well that both children require financial support from him, the husband has eschewed his monetary obligations towards the children for the past three years.

[30] When considering other remedies in lieu of striking pleadings, such as an adjournment to provide the Respondent with more time to effect disclosure; striking the Respondent's pleadings on financial issues and allowing him to continue on the parenting issues; and/or inviting the Applicant to seek an adverse inference at trial if material disclosure remains outstanding (Kalair v. Kabir, 2022 ONSC 6786, at para. 175), I find that none of these alternatives are practical in this case, given that the husband has effectively abandoned these proceedings.

[31] I am not satisfied that if this matter were adjourned to give the husband an opportunity to respond or comply that any difference would be made. He has already failed to show up at a Settlement Conference and a Trial Management Conference. Further, his failure to respond to this motion, makes it clear that he husband has walked away from this court proceeding and his responsibility to pay child support.

[32] The wife commenced the within Application over 5 years ago. She is entitled to advance her case, even in the face of the husband’s willful breaches and intentional disregard of the process. In accordance with the primary objective of the FLRs set out in Rule 2, it would save the wife further expense and time if she were permitted to proceed with her claims by way of an uncontested trial in writing.

[33] As recently stated in Nool v. Carido, 2016 ONSC 639, “[w]here custody and access interests are involved, the court should avoid the sanction or use utmost caution in striking pleadings because trial court needs participation of both parties and information that each can provide about best interests. A full evidentiary record, including the participation of both parties, is generally required to make a custody decision in the best interests of the children. See King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466 (Ont. C.A.), cited with approval in D. (D.) v. D. (H.), 2015 ONCA 449, and Haunert-Faga v. Faga, 20 R.F.L. (6th) 293 (Ont. C.A.).

[34] This is not a case, however, where the husband has been actively involved in the lives of the children. The OCL report is clear that the husband was uncooperative in that process. Despite having parenting time with the children, the husband has chosen not to have contact with the children since September 2019. He has demonstrated an inability to place the children’s needs and best interests ahead of his own given that he appears to have little if any regard for how his absence from the children’s lives may affect and impact them. In light of this conduct, the court’s determination of what is in the children’s best interests can be made without any involvement from the husband given that he has chosen to opt out of his parenting role.

[35] Given that the husband has failed to attend the last three court attendances, despite being aware of the proceedings, he is no longer engaged in the court process and he has willfully ignored it, there is no longer an adversarial process since the husband has failed to participate meaningfully, it at all since January 2020.

[36] As stated by O’Connell in Nool v. Carido, at paragraph 34, it is in the children’s best interests, as well as the parties’ interest, to achieve finality and to limit the protracted, costly and unnecessary litigation in this case. For all of the above reasons, this is an appropriate case to strike the husband’s Answer and to permit the wife to proceed on an opposed basis against the husband.

[37] The wife, as the successful party on this motion is presumptively entitled to her costs. The costs sought by her are reasonable and proportionate in the circumstances.

DISPOSITION

[38] This court makes the following order:

a) The Respondent husband’s pleadings are struck and the Applicant wife shall proceed with her application on an uncontested basis against the husband by way of a Form 23A.

b) The Respondent husband shall pay the Applicant wife’s costs of this motion in the fixed sum of $2,500 to be enforceable by the Family Responsibility Office.

Released: August 1, 2024 M. Kraft, J.