Wellman v. Robert, 2011 ONCJ 698

1. Faith Wellman v. Allan Robert Ruling – Kowalyshyn, J. Chatham File No. 05-101 DATE: 2010·IX·02 CITATION: Wellman v. Robert , 2011 ONCJ 698 ONTARIO COURT OF JUSTICE BETWEEN: FAITH WELLMAN Applicant v.

ALLAN ROBERT Respondent FAMILY RESPONSIBILITY OFFICE and CHATHAM-KENT ONTARIO WORKS Assignees M O T I O N Before Justice Paul J.S. Kowalyshyn on September 2, 2011 at CHATHAM, Ontario. APPEARANCES : J. Schatz Counsel for Faith Wellman S. Andari Counsel for Allan Robert B. Coulter Counsel for Family Responsibility Office K. O’Hara On behalf of Chatham-Kent Ontario Works TUESDAY, SEPTEMBER 2, 2011 R U L I N G KOWALYSHYN, J. (Orally): Today we had two motions that were argued. The first at tab 11 was a motion to strike the pleadings of Mr. Robert, which is brought by Miss Schatz on behalf of Miss Wellman.

That sought to strike for failure to pay outstanding cost orders because it was a waste of time,

nuisance and abuse of the court’s process to deal with this motion to change. The motion also sought security for costs in the amount of $15,000 or whatever amount this court deemed fit. There was a motion brought by Mr. Robert at tab 13 and that was a motion to suspend or reduce spousal support and his spousal supportpayment obligation. It was also to suspend enforcement by the Family Responsibility Office. In short and at the heart of this is the fact that Mr. Robert has outstanding costs orders, which have not been satisfied. There are threeorders.

They are August 30, 2005 in the amount of $800; April 10, 2006 in the amount of $185 and November 24, 2006 in the amount of$7,000 ordered payable to Miss Wellman and $1,000 to the Family Responsibility Office. Those total, obviously 1,000 to the FamilyResponsibility Office and $7,985 to Miss Wellman. During that period, and I am talking about the period of the three orders, but for September 2005, Mr. Robert was always in arrears of hismonthly spousal support obligations. I take this information from the Family Responsibility Office Statement of Arrears.

The lowest that he was in arrears was on September 19, 2006. At that time he owed $2,972.20. The highest amount of his arrears was$7,700 on November 1, 2005. According to the Family Responsibility Office records filed with these motions he continues to be in arrears. The respondent has provided evidence of his income from 2005 through 2010. His income, he claims, is as follows: 2005 $56,512, 2006$56,259, 2007 $33,669, 2008 $68,055, 2009 $40,666, 2010 $22,190.23. Mr. Robert claims that he has overpaid support based on his income compared to Miss Wellman’s income.

Now that may very well bebut today we are dealing with something else. And what we are dealing with today is an individual, namely Mr. Robert, who hasknowingly ignored three separate court orders with respect to paying Miss Wellman costs. He effectively chose to ignore the court proceedings that he was a party to. He specifically chose to start up proceedings in 2006 andthen fail to follow through and show up and argue his motion. I appreciate that evidence has been led with respect to a break down in communications between Mr.

Robert and his counsel at that timeand that is certainly most unfortunate however, as any other litigant, he does have an obligation to follow through with the proceedingsthat he initiated or alternatively take those measures which are necessary to bring those proceedings to a halt. In any event, Mr. Robert’smotion was dismissed and he was ordered to pay costs totalling $8,000. There can be no other conclusion than that Mr. Robert hasbrought all of this onto himself. He has done nothing in my view to put himself in a favourable position before the Court.

He has ignored orders, which would financiallybenefit the applicant, Faith Wellman, yet he is asking for an order against that backdrop which would financially benefit him. Thatstrikes me as being one rule should apply to both rather than just to one. Now I have considered a number of cases in relation to the relief requested by Miss Wellman. And I will provide Madam Clerk withcites but there is the decision of Gordon v. Starr, , 42 R.F.L. (6th) 366, [2007] O.J. No. 3264, 2007 Cars​well​Ont 5438(Ont. Fam. Ct.), Molina v. Molina, 2011 ONSC 3030, [2011] O.J. No. 2287, 2011 Cars​well​Ont 3569 (Ont. Fam.

Ct.) and Hughes v.Hughes, , 85 O.R. (3d) 505, [2007] O.J. No. 1282, 2007 Cars​well​Ont 1977 (Ont. Fam. Ct. All three cases are casesof the Ontario Superior Court of Justice. Having listened to the submissions of counsel and following a review of the Family Law Rules and the case law, I believe that subrule

14(23) is applicable under the circumstances as is rule 1(8). I believe that subrule 14(23) applies as Mr. Robert has brought a motion seeking temporary relief, as has Miss Schatz specifically under subrule 14(22). If I am wrong, then certainly rule 1(8) applies and there would not appear to be any quarrel from counsel or Miss O’Hara with respect to the operation of that rule.

For the benefit of everyone rule 14(23) provides for failure by a party to obey an order made on a motion in the following terms: A party who does not obey an order that was made on a motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the Court may on motion in addition to any other remedy allowed under these rules, (

a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party; (

b) postpone the trial or any other step in the case; (

c) make any other order that is appropriate, including an order for costs. Justice Joseph W. Quinn in Gordon v. Starr , supra , at paragraph [16] , emphasized that subrule 14(23) should not be taken lightly and that the onus is on the non-compliant party to show on a balance of probabilities while subrule 14(23) should not apply. He noted that it would take an extraordinary event to trigger the “unless” provisions of subrule 14(23). And I would add also that the reasoning that was used by Justice Quinn in this decision certainly would appear to be applicable to the court’s consideration of subrule 1(8).

In any event, Gordon v. Starr , supra , was referenced in Molina v. Molina , supra , as well as in the decision of Ferguson v. Charlton , 2008 ONCJ 1 , 171 A.C.W.S. (3d) 910, [2008] O.J. No. 486, 2008 Cars​well​Ont 667 (Ont. C.J.). That was a case in the Ontario Court of Justice. This case set out the approach to be taken by courts in dealing with non-compliance by a party with court orders in the context of family law subrule 14(23). What I am going to quote to you right now is extremely helpful and I would submit extremely applicable under the circumstances. And all of this is a quote.

The Court must ask whether there is a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order in the case or a related case (subrule (1)(a)) or an order ‘made on a motion’ subrule 14(23). Second, if the triggering event exists, the Court should then ask whether it is appropriate to exercise it’s discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8) or by ordering that subrule 14(23) does not apply.

My review of the forgoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view the Court’s decision of whether or not to exercise it’s discretion in favour of a non-complying party ought to take into account all relevant history in the course of the litigation and more specifically the conduct of the non-complying party.

Third, in the event the Court determines that it will not exercise it’s discretion in favour of the non-complying party it is then left with the very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).

That is the end of that lengthy quote. This approach has been adopted in a number of decisions. Accordingly, the onus is on Mr. Robert here to show on a balance of probabilities that rule 14(23) is not applicable. Mr. Robert acknowledges that he has not paid court costs yet he does not specifically say why he did not pay in those years. He gives an explanation as to his current financial difficulty - reduced income and considerable deduction by FRO, health issues - but does not go into a great deal of detail with respect to same.

Similarly, he does not explain why it was in 2005 and 2006, the two years the cost orders were made that he did not pay the costs as ordered. As earlier indicated, in 2005 he earned $56,512 and in 2006 he earned $56,259. Although his income dropped to $33,669 in 2007, it jumped, as I have indicated, to $68,055 in 2008. His average income for those four years was $53,623.75. He did not pay a cent toward the cost orders. Presumably, Mr. Robert is arguing in part that he is now impecunious and cannot pay any portion of the cost orders.

He states that in 2010 he had gross income of approximately $22,191 but only had $4,726 to live off of because the Family Responsibility Office took $17,465 from him on account of his ongoing support obligations. Having reviewed his November 24, 2010 financial statement, which shows yearly expenses of $43,188, I have a great amount of difficulty accepting this position. Mr. Robert’s standard of living and lack of any debt save and except his mortgage is not reflective of a “net income” of only $4,726. Mr.

Robert has had ample opportunity to comply with the outstanding cost orders, between five and six years to be exact. I see nothing in the material, which suggests anything other than a deliberate and repetitive act of non-compliance. I agree with the comments of Justice Quinn in Gordon v. Starr , supra , where he said at paragraph [23], Subrule 14(23) should not be taken lightly. It means what it says. It recognizes the offensiveness of allowing a party to obtain relief while in breach of a court order. Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion.

Non- compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders. He then says in paragraph [24], I do not think that the amount of the costs order being disobeyed has much relevance. I also do not accept that it takes a breach of multiple orders to result in the dismissal of an application or a motion. Non-compliance with one order is quite enough. Accordingly, the provisions of subrule 14(23) will be invoked. Mr.

Robert has not raised a convincing argument as to why those provisions should not be invoked in relation to the three outstanding cost orders. In the event that I am wrong with respect to the applicability of subrule 14(23) then I am relying on the provisions of subrule 1(8), which reads, Failure to follow rules or obey order – The court may deal with a failure to follow these rules, or a failure to obey an order in the

case or a related case, by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate including, (

a) an order to costs; (

b) an order dismissing a claim made by a party who has willfully failed to follow the rules or obey the order. Now I also rely on, adopt and agree with all of the comments made by Justice Quinn in t Hughes v. Hughes , supra , relied on and produced by Miss Schatz. Specifically I am making reference to paragraphs [17], [18] and [19] of that decision. Paragraph [17], which refers to the failure to obey an order in the case reads, Subrule 1(8) is available where there is ‘a failure to obey an order in the case’. There is no requirement that the order be made on motion; and it matters not who obtained the order.

As long as the judge is satisfied that there has been a failure to obey an order ‘in the case or a related case’ subrule 1(8) is triggered. Then in dealing with the phrase, “a just determination of the matter” at paragraph [18], he says, Where a party has failed ‘to obey an order in the case’, the court is entitled to make ‘any order that it considers necessary for a just determination of the matter’. The words ‘just determination’ are sufficiently wide to include protecting the integrity of the administration of justice, and that is what is at stake if a party willfully disobeys an order.

Paragraph [19] reads, The husband cannot expect to come before this court and be given a voice in circumstances where he has thumbed his nose at the legal system by deliberately breaching an order. That is the end of that quotation from that case. In my view and with the greatest of respect to Mr. Andari, that is precisely what Mr. Robert has done. He has thumbed his nose. Not once, not twice but three times. To suggest otherwise is absolute folly. As I have already stated, in the two years that the court orders were made Mr. Robert earned $56,512 and $56,259. He refused to pay a cent.

I would also add that I disagree with the suggestion that it was Miss Wellman’s obligation or duty to chase Mr. Robert and utilize some other enforcement method, I believe as it was categorized by Mr. Andari, to collect. Clearly and certainly it was her right to do so as she was a person entitled to receive an award of costs, actually three awards of costs. Her failure to do so has obviously resulted in financial repercussions to her. Just as she had elected not to enforce the cost orders however Mr. Robert elected not to pay. That was certainly his right. And there are negative repercussions to him as well.

To quote Mr. Andari, “litigants have to take responsibility at each stage to act in furtherance of their rights.” Mr. Robert had a number of rights available to him: to pay, to appeal. He did not. He made his bed. He will be permitted to sleep in it. As Justice Quinn had previously indicated, “an order is an order.”

Subrule 1(8) allows the court considerable discretion in my view. Specifically it allows and permits a court to dismiss a claim. Because of the discretion afforded it also allows a court to strike out a document. That is my

interpretation of it. And that is certainly a remedy that is specifically permitted by subrule 14(23). In the Ontario Court of Justice decision of Harry v. Singh , 2007 ONCJ 326 , 40 R.F.L. (6th) 293, [2007] O.J. No. 2803, 2007 Cars​well​- Ont 4627 (Ont. C.J.), the court said that to strike a party’s pleading is an extreme remedy. It is to be used sparingly with the utmost caution. There must be clear evidence of deliberate default and a complete disdain for orders of the court. That is precisely what we have here. Having said all that I am not, however, going to strike Mr.

Robert’s pleadings or dismiss his motion at this time. I am going to stay his motion for relief and give him some almost 90 days to consider what I have said today and also to possibly reconsider his position and his options.

Accordingly, my order is as follows, for oral reasons order to go as follows, 1 ) The respondent’s motion at tab 13 is stayed pending further order 2 ) The respondent shall not be entitled to proceed with his motion to change final order until such time as he satisfies payment of the three outstanding cost orders, August 30, ’05 in the amount of $800, April 10, ’06 in the amount of $185 and November 24, 2006 in the amount of $7,000 in favour of the applicant and $1,000 in favour of FRO or posts security for costs in the amount of $12,000 or pending further order of this court 3 ) The applicant’s motion at tab 11 is adjourned to a date and I am going to propose to counsel that it be November 29, just give me a moment, at eleven-thirty in 202 so as to allow the respondent the opportunity of satisfying the provisions of paragraph two herein and for possible further argument 4 ) The issue of costs of the motion heard today will be adjourned to that return date.

So I believe for the benefit of all the parties and counsel, my order should be clear. I have still left the door open for Mr. Robert and I am going to give you, Mr. Andari and Mr. Robert the benefit of approximately three months to see what can be done to address the concerns that I have raised and the hurdles that this gentleman has to overcome. So are counsel available on November 29 at eleven-thirty? MR. COULTER: Yes. MR. ANDARI: Your Honour, in my - at least in my diary I have that as time booked for Justice Fuerth in his trial time and I’m not sure if that’s still what’s, what’s scheduled.

I know there were changes to the trial time. THE COURT: That is marked for Justice Fuerth’s trial time. Are you scheduled for nine-thirty before Justice Fuerth or ten o’clock, do you have any idea? MR. ANDARI: I don’t. THE COURT: Because I could put this in at nine-thirty. MR. ANDARI: I understand that. Your Honour’s aware of my ongoing trial commitment with Justice Fuerth. It continues next week. I frankly don’t know what Justice Fuerth will do after, after Wednesday or Thursday of next week vis-a-vis our trial time. But I see it there as being November and more trial time for him.

He hasn’t spoken about November but I don’t want to

schedule something if I’m going to be in trial. That’s my concern. THE COURT: Okay. MS. SCHATZ: If it isn’t him, it’ll be me. I believe the.... THE COURT: So that date is not an agreeable date. MS. SCHATAZ: Well, eleven-thirty is – I, I think if we were able to

schedule it around a start time or a break – expected break time

or.... THE COURT: What about two-fifteen? And then that way if you are in trial you can advise Justice Fuerth that day. MR. ANDARI: Sure. THE COURT: You may break earlier and that will allow you to be here. Okay. MR. ANDARI: That’s fine. I, I just thought I should make the Court aware. THE COURT: No. I am glad that you raised that. So this period of time may also give counsel for Ms. Wellman and Mr. Robert an opportunity to discuss maybe issues that arise out of this decision as well and maybe some other – I would not say some other resolution or there will be some narrowing of some issues potentially. MR.

ANDARI: One of the things, sir, that I probably have to take up with Mr. Robert and I want to – not sure if this is cart before the horse. I’m not sure if the court would be open to altering this decision to allow Mr. Robert to pay the money into court, essentially to the Province of Ontario to hold pending completion of the litigation. So if the costs orders were paid into court, necessarily at least that would, would get the money paid but it wouldn’t be paid out immediately. There is still that overage question and I raise that with Your Honour.

I, I – I’ve got to be able to put it to my client as to whether that’s an option for him. THE COURT: Okay. Not that I would necessarily consider it but if that was reduced to let us say half into court and then half to her, I might be more inclined to consider it but the fact is, is that this woman has been waiting for five or six years and she has not been paid a nickel although the argument is and I understand and appreciate that she has been paid indirectly. Okay. MR. ANDARI: Mm hmm. Yes. Yes. THE COURT: Miss Schatz. Mr. Coulter. MS.

SCHATZ: I, I think and I, I believe that those cost orders were payable to her. They remain payable to her. Nothing was done, as you said, in the meantime to change it otherwise and these are old orders. He’s had plenty of time to do something in that regard. THE COURT: So it has been raised. I do not see any consent. I have made that order. Maybe what you might want to consider doing Mr. Andari is you might take your calculations with respect to the overage and the incomes applied as to what has been paid, applied as to costs and consider in – you may have some proposal for me when we return in November.

I do not know. MR. ANDARI: Okay. THE COURT: But right now the order therefore will stand as is. MR. ANDARI: Yes, sir. Thank you. THE COURT: Okay. So I want to thank everybody for the material and the time that they have spent and for the parties for returning this afternoon. Okay. MR. SCHATZ: Thank you. MR. ANDARI: Does Your Honour have a written endorsement that we would review at some point? THE COURT: There is a brief one. I will tell I am going to have a transcript prepared of my reasons and I will ensure that counsel each receive a copy. Okay. MR. ANDARI: Appreciate it. Thank you. THE COURT: Thank you.

So Madam Clerk I will – or Madam Reporter I will formalize that in the usual fashion. I will make a little note here. Thanks. MR. ANDARI: Those are my matters. THE COURT: Okay. Thank you.

* * * * * * * * * * * LEGEND [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically. Transcript Ordered: September 2, 2011 Transcript Completed: September 27, 2011 Ordering Party Notified: September 28, 2011