Court File and Parties

Court File No.: FS-19-42625-0000
Date: 2025-02-14
Court: Superior Court of Justice – Ontario

Re: Rachel Ross, Applicant
And: John Kenyon, Respondent

Before: C. Chang

Counsel:
J. Feldman, for the Applicant
M. Fuller, for the Respondent

Heard: February 13, 2025 (via videoconference)

Endorsement

[1] The respondent brings this urgent motion to reinstate his parenting time with eleven-year-old RK. Yamashita J. granted the respondent leave to bring the motion and Coats J. scheduled the motion hearing.

Factual Background

[2] The respondent commenced the underlying motion to change seeking a variation of the final order of Fowler J. dated October 11, 2019. The applicant has responded to the motion to change and makes her own claims. By order dated April 27, 2023, Mills J. struck out the respondent’s pleading, and thereafter the applicant was granted leave to proceed with her claims by way of an uncontested trial in writing.

[3] On June 25, 2024, Coats J. ordered that, for a six-month period, the respondent’s parenting time with RK be contingent on the respondent’s adherence to Soberlink blood alcohol testing protocols, that any applicable reading above zero (or a “fail”) would be deemed non-compliant, and, upon there being evidence of the respondent’s non-compliance, his “entitlement to further parenting time shall be suspended forthwith”. She further ordered that, upon such suspension, the onus would be on the respondent to bring a motion to lift or vary the suspension. The respondent complied with that order respecting the Soberlink testing and took no steps to have the order set aside or varied.

[4] Soberlink reported “fails” (i.e., alcohol in the blood) for the respondent on July 10, 2024, August 3, 2024, September 27, 2024, and October 25, 2024, which dates were either during or around his parenting time with RK.

[5] The respondent has had no parenting time with RK since November 8, 2024.

Issues

[6] The sole issue for determination on this motion is whether I should lift the suspension of the respondent’s parenting time with RK.

Analysis

Parties’ Positions

[7] The applicant opposes the respondent’s motion and submits that it should be dismissed because the respondent has breached five court orders and remains in non-compliance with them. She argues that it would be unjust for the respondent to be granted the relief he seeks while he remains in breach of court orders and has had his pleading struck out. She also argues that the respondent made a material misrepresentation when seeking leave ex parte to bring this urgent motion by failing to disclose his breach of court order and the striking out of his pleading.

[8] The respondent denies that he is in breach of any court orders other than those that, in total, require him to pay $10,500.00 in costs. He admits that his non-compliance with those orders is serious and relevant to this motion, but argues that he is nonetheless entitled to parent his child. The respondent also argues that he is unemployed, has no money, and therefore can’t afford to pay the court-ordered costs. He further submits that his non-disclosure to the court was due to his counsel’s inadvertence and her misunderstanding of court procedures. Ms. Fuller says that she wasn’t provided with the previous court orders, including the one striking out the respondent’s pleading, and, when she submitted her request for leave to bring this urgent motion, she “just thought I was seeking a date”. The respondent further submits that his four Soberlink testing “fails” in July through October 2024 are inconsequential because he passed the other seventy-five tests.

Decision

[9] For the reasons set out below, I am dismissing the respondent’s motion and therefore need not address his request for police enforcement.

[10] Rule 1(8) of the Family Law Rules, O. Reg. 114/99, provides that, where a party fails to obey an order in a case or related case, the court may order that he is not entitled to any further court order. Rule 1(8.4) of the Family Law Rules provides that, where a party’s pleading is struck out, he is not entitled to participate in the case in any way. In my view, the operation of these rules is sufficient to dispose of the respondent’s motion, but there are additional factors that strongly militate in favour of its dismissal: the respondent’s non-compliance with numerous court orders, his conduct in the litigation, his material non-disclosure when seeking leave, and the numerous “fails” in the Soberlink testing mandated by the June 25, 2024 Coats J. order.

[11] I do not accept the respondent’s arguments that his non-compliance with previous court orders, the fact of his pleading having been struck, his non-disclosure when seeking leave to bring this urgent motion, and his Soberlink testing “fails” are inconsequential when compared to his right to parent RK. I address each of those arguments as follows.

Court Orders Must be Complied With

[12] It is beyond well established that court orders must be followed unless they are stayed or overturned (see: Perley-Robertson, Hill & McDougall LLP v. Eureka 93 Inc., 2024 ONCA 872, at para. 8). However someone may choose to view the importance and/or significance of an extant court order, that order must be complied with.

[13] Even if there is a scale of important or significant court orders, the respondent’s non-compliance with the court orders in the case-at-bar goes beyond what could be characterized as inconsequential. A review of the applicable court orders reveals more than “one-off” or trifling non-compliance, or “simple” non-payment of costs orders. Indeed, that non-compliance ultimately resulted in the striking out of the respondent’s pleading and leave being granted to the applicant to proceed with her claims by way of an uncontested trial.

[14] I do not accept the respondent’s proffered explanation that the only reason why he hasn’t complied with the costs orders is his inability to pay them because he has no money and is unemployed. Among other things, as candidly admitted by Ms. Fuller, there is before me “no evidence of [the respondent]’s financial circumstances whatsoever”.

Moving Ex Parte Requires Full and Frank Disclosure

[15] It is settled law that, in civil or family cases, a party moving ex parte must fully and frankly disclose all material facts, including those that do not support his position (see: Amato v. Hall, 2024 ONSC 2422, at paras. 13 and 17). The failure to make such disclosure is, in and of itself, sufficient grounds to set aside the resulting order (see: Amato, at para. 15). The relevant inquiry is not whether the subject order would have been granted had the omitted facts been disclosed, but whether those facts might have had an impact on the granting of the order (see: Amato, at para. 16).

[16] In the case-at-bar, when seeking leave to bring this urgent motion, the respondent failed to make full and frank disclosure: he failed to disclose that his pleading had been struck and that he had failed to pay $10,500.00 in costs orders. In my view, that non-disclosure was material because those omitted facts, most certainly, might have had an impact on the granting of leave to bring this motion. I do not accept the respondent’s argument that his failure to be candid was an inadvertent and inconsequential slip by his counsel, who didn’t receive evidence of the previous court orders and didn’t understand the applicable court procedures. The duty of candour and honesty on parties who move ex parte includes the obligation to search for, marshal, and disclose to the court all relevant evidence and information. In addition, counsel are duty-bound to ensure their knowledge of and compliance with applicable court procedures. In the context of material non-disclosure on an ex parte motion, the respondent’s proffered “oops” explanation is simply not good enough.

[17] I also do not accept the respondent’s argument that his request for leave to bring this motion was “just to get a date”. The process to request leave to bring an urgent motion as set out in the Notice to the Profession and Parties requires the party seeking leave to file the materials for the proposed motion to be reviewed by a judge of this court in determining whether the requested leave should be granted. In Milton, if such leave is granted, the judge can schedule a hearing date for the motion or put the motion onto a Triage Court list for scheduling. In the case-at-bar, Yamashita J. granted the requested leave and put the respondent’s urgent motion onto the January 30, 2025 Triage Court list for scheduling. Therefore, the respondent’s explanation that Ms. Fuller’s filing of his motion materials in accordance with the applicable procedure for seeking leave to bring an urgent motion was “just to get a date” is neither credible nor acceptable. In addition, I note that the respondent had still not served his motion materials on the applicant by the January 30, 2025 Triage Court attendance and was subsequently ordered by Coats J. to do so.

[18] Even if the procedure before Yamashita J. was “just to get a date”, the duty of full and frank disclosure still applies. Indeed, in my view, that duty should apply to any ex parte step in a legal proceeding where the court is called upon to adjudicate an issue that may affect the rights of a person who has not been served. Moreover, where a request is submitted for leave to bring an urgent motion, the rights of the opposing party are clearly affected, but so too are the rights of other litigants in other cases because the court is being asked to permit the proposed urgent motion to “jump the queue” ahead of every other matter where the litigants are waiting for a scheduled hearing or are waiting to have their hearing scheduled. In addition to the obvious fairness issues, the court, in being asked to adjudicate the issue on an ex parte basis, must also be provided with full, honest, and candid disclosure of all relevant facts and information.

Soberlink Testing Fails Are Not Inconsequential

[19] I also do not accept the respondent’s argument that his Soberlink testing “fails” during the currency of the June 25, 2024 order of Coats J. is inconsequential when compared to his right to parent his child.

[20] It is trite law that, when making parenting orders, the court’s sole consideration is the child’s best interests. Based on a plain reading of the June 25, 2024 Coats J. order, it is clear that RK’s best interest are aligned with the complete lack of any alcohol in the respondent’s blood before or during RK’s parenting time with him. Anything other than a zero testing result before that parenting time would automatically result in no parenting time. Anything other than a zero result during that parenting time would automatically result in the respondent’s relinquishment of care and control of RK to the applicant. Evidence of anything other than a zero result at any time would automatically result in the forthwith suspension of parenting time, with the onus on the respondent to bring a motion to lift or vary that suspension. Therefore, the respondent’s proffered characterization of his four “fails” as inconsequential to this motion is neither reasonable nor acceptable.

Summary and Conclusion

[21] The respondent’s motion must therefore be dismissed. However, in my view, such dismissal should be without prejudice to the respondent’s ability to re-bring the motion after he has paid all outstanding costs orders.

Costs

[22] The applicant, having successfully opposed the respondent’s motion, is entitled to her costs, which she seeks on a partial recovery basis in the all-inclusive amount of $12,500.00 (the full recovery amount in her bill of costs is $18,351.20). The respondent’s bill of costs sets out a full recovery amount of $20,291.98, but he submits that the appropriate amount of costs on this motion is $12,500.00 on a partial recovery basis. There are no relevant offers to settle.

[23] Taking into consideration the factors set out in rule 24(14) of the Family Law Rules, including, without limitation, counsel’s hourly rates, the time spent, and the factual and legal complexity of this motion, I find the all-inclusive amount of $10,500.00 to be fair, reasonable, and proportionate in the circumstances. While the amount of the unsuccessful respondent’s claimed costs matches the applicant’s exactly, it is but one factor that I have considered in setting the appropriate quantum of costs. I consider the claimed amount of $12,500.00 to be excessive given the low legal and factual complexity of the motion.

Disposition

[24] I therefore make the following orders:

a. The respondent’s motion is dismissed, without prejudice to his ability to re-bring it upon his payment of all outstanding costs orders; and

b. The respondent shall pay to the applicant her costs of this motion on a partial recovery basis, which are set in the all-inclusive amount of $10,500.00 and payable within thirty days of the date of this endorsement.

C. Chang
Date: February 14, 2025