2013 ONCJ 394, 2013 ONCJ 394

COURT FILE NO.: 346/12 DATE : 2013-05-17 Citation : Mason v. Blanchford , 2013 ONCJ 394 ONTARIO COURT OF JUSTICE RE: SARAH MASON and BJORN BLANCHFORD BEFORE: Justice Roselyn Zisman COUNSEL: Samantha Dineno for the Applicant Self- represented Respondent HEARD ON: May 15, 2013 Introduction [ 1 ] This is a motion by the Applicant, Sarah Mason (“mother”) to strike the respondent, Bjorn Blanchard (“father”)’s pleading pursuant to Family Law Rules 1 (8), 13 (17), 14(23) and 19(10) and to proceed by

summary judgement pursuant to Rule 16 for an order of custody, access to the respondent, child support, retroactive child support and special expenses. Background [ 2 ] The parties began a common law relationship in 2000 and separated in August 2011. There are two children of the relationship, Layla Mason Blanchard born April 15, 2006 and Rowan Mason Blanchard born July 27, 2010. The mother was the primary caregiver during the relationship and worked mostly part-time.

The father was always employed as a subcontractor specializing in drywall and metal framing. [ 3 ] Since the separation the mother requested financial disclosure and child support. When the father refused to pay any support or provide the requested financial disclosure, the mother commenced this court proceeding seeking custody, child support and a sharing of the children’s special expenses. Since the separation the father only paid for the mother’s car insurance for eight months, totaling $1,634.64 and made a payment for her cell hone of $292.41.

The total amount paid was $1,927.05 which arguably could be considered child support. [ 4 ] The father filed an Answer claiming joint custody and alleging that the parties had an agreement that he would not have to pay any child support until his bankruptcy was discharged as the mother and children were living rent free with her parents and the children were in subsidized day care. [ 5 ] The parties were before the court on December 7, 2012 for a case conference. The respondent consented to an order for disclosure to be provided within 40 days.

On a without prejudice basis, the father agreed to pay child support of $522.00 per month based on an imputed income of $36.000.00 [ 6 ] The matter returned before me on March 12, 2013 for a settlement conference. The father had not complied with the disclosure order nor had he responded to the several letters counsel for the mother sent him reminding him of his obligation. No child support had been received by the mother. The father indicated he could comply within the next 30 days with the disclosure he agreed to provide on December 7, 2012.

He was directed to serve and file an affidavit explaining any items of disclosure he was unable to comply with and

what efforts he to obtain the disclosure. The parties agreed on a without prejudice order that the children reside with the father on three consecutive week-ends from Friday after daycare to Sunday. [ 7 ] A motion date was set for May 15 th , to permit mother’s counsel to bring a motion to strike the father’s pleadings, if necessary, and for a temporary or final order for custody, access and child support issues. The mother was to serve and file her motion materials by April 30 th and the respondent to serve and file his responding materials by May 8 th and any reply to be served and field by May 14 th .

Counsel for the mother served and filed her materials in accordance with these timelines. [ 8 ] The father filed no responding affidavit.

However, the father did file a sworn one page affidavit explain why he was unable to provide certain items of disclosure and attached some disclosure. [ 9 ] Counsel for the mother submits the following disclosure is still outstanding: • 2011 notice of assessment with no explanation as to why it is unavailable • Supporting documentation for business expenses set out in his financial statement; all that was produced are handwritten time sheets for various weeks from January to May 2011 but given the lack of any detail it is impossible to ascertain whether or not the business expenses claimed are reasonable Copy of current business expenses in the amount of $2,058.86 as set out in his financial statement; all the father provided were some transactions on his bank statements with comments, “truck”, office, phone work clothes”.

He also provided a copy of a conditional sales contract for a 2004 Ford F150 with a letter regarding financing dated 2009 but no proof this was a business vehicle; he also provide some 2012 vehicle repair bills but these are then not related with any amounts on the bank statements • Copy of lease agreement- only parts of the agreement were produced • Bank statements from January 1, 2011 to the present time- only statements from January 1, 2012 to December 31, 2012 were provided • Amounts received from roommates or tenants; his only response was “N/A” despite the fact that there are at least three adults living in his home • Supporting documentation that the mother agreed no support was payable; besides a statement that they had a verbal agreement no other evidence was produced • Proof of new employment opportunities or plans he is pursuing; the only response was “No opportunities at the moment but im [sic] looking so I will NO longer be self-employed” Position of the applicant [ 10 ] It is submitted that the respondent has not provided sufficient financial information to assist the mother and her counsel in making a reasoned determination of his income for child support purposes. [ 11 ] It is further submitted that the father is simply not taking this court proceeding or his obligations to abide by court orders seriously and that giving the father even more opportunities to comply with the disclosure order will just prolong the process with no reasonable expectation that he will comply.

It is submitted that the mother is the only parent supporting the children, she has not received any child support and she can no longer afford the cost of litigation. Striking Pleadings [ 12 ] Although it is clear that striking a party’s pleadings should only be used sparingly and as a last resort especially where children’s interest are involved [1] , however I must also consider that “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 is the all too common casual approach to compliance [2] with court orders”. [ 13 ] The father has taken a cavalier attitude to the necessity of proving disclosure in a timely fashion and despite being self- represented he has been warned about the necessity of compliance and the consequences. I see no other realistic alternative to striking the father’s pleadings on a without prejudice basis to being re-instated once he has fully complied with the disclosure order.

In my view this will strike the necessary balance of providing a serious consequence to the father’s ongoing lack of compliance and still permit the father to re-argue at some time in the future that support should be based on an income different from the amount being imputed. Evidence on

summary judgment motion [ 14 ] Ms Dineno, on behalf of the mother, seeks an order for

summary judgment. It is not disputed that the mother has been the primary caregiver. The father, in his Answer, seeks joint custody. As previously noted he did not file a responding affidavit. However, I permitted him to make oral submissions. He submitted that the only reason the parties do not communicate is because the mother refuses to do so. [ 15 ] It is not disputed that the mother approached the father about enrolling Layla in Irish dance classes and he simply dismissed the idea without explanation.

She emailed the father requesting that he provide feedback about Layla’s report card and suggested they enroll Rowan in a program and he ignored her emails. She emailed him again about enrolling Layla in baseball this summer and again he ignored the email. When the mother reminded the father about the importance of taking Layla to her first dance competition which occurred on his weekend, he did not take her. He submitted that he had a medical emergency but it never seems to have occurred to him to call the mother and ask that she take Layla.

When Rowan was ill he did not contact the mother or take him to the hospital but waited

for the mother to pick him up who then had to take him to the hospital. [ 16 ] There are ongoing issues on pick ups and drops offs, the father discussing adult issues with the children and recently he called the police against the mother. He has kept the children for long weekends although the current order required them to be returned by Sunday. [ 17 ] He has refused to communicate with the mother.

In the past they communicated through text messages but he now refuses to do so as he does not want to have a record of any significant commitment or decision. [ 18 ] The mother is requesting that access be varied to alternate weekends and one overnight a week to better allocate the weekends between the parties and a specified

schedule for holiday access. To the mother’s credit despite the difficulties between herself and the father she has never interfered with his time with the children and seems to genuinely appreciate and encourage a relationship between the children and their father. [ 19 ] With respect to the child support, the mother seeks to impute income to the father of $60,000.00. The father did submit most of his bank statement for 2012 and the deposits total $60,802.85.

It is submitted that this is a more realistic income based on his financial statement sworn October 15, 2012 wherein he states that his last years’ income was $52,000.00 as opposed to the $27,278.00 income that he projects for 2012. As indicated the father has not filed either his 2011 Notice of Assessment or proof of 2012 income. General legal consideration on a

summary judgement motion [ 20 ] Rule 16 of the Family Law Rules allows a party to seek

summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired. [ 21 ] Rule 16 (2) provides that a motion for

summary judgment is available in any case. [ 22 ] Rule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial. [ 23 ] Rule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial.

The responding party cannot make mere allegations or denials of the evidence. [ 24 ] Rule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly. [ 25 ] Rule 2(5) is also relevant as it require that a court manage a case to promote the primary objectives of the rules which is to enable a court to justly deal with cases. [ 26 ] It is well established that

summary judgment is available in custody and access matters. [3] In determining whether or not a genuine issue for trial exists, the court is not to assess credibility, weigh evidence or find the facts. The court’s role on such a motion is narrowly limited to assessing the threshold issue of whether or not a genuine issue exists requiring a trial. [ 27 ] The court must take a hard look at the merits of the case to determine there is a genuine issue for trial. The onus is on the moving party to show there is no genuine issue for trial on a balance of probabilities.

The court must review all of the evidence to determine whether there is a basis for the final order sought. A proper consideration of the record is necessary. Then the court must determine whether there are specific facts that support a triable issue. A “genuine issue” must relate to a material fact. A mere factual conflict does not, in and of itself, lead to the necessity of a trial. It is not sufficient for the responding party to make mere allegations or blanket denials or self-serving affidavits that are not supported by specific facts to defeat a claim for

summary judgment. Application of law to facts [ 28 ] I find that the mother has met the onus of proving there is no genuine issue for trial and an order for

summary judgment should issue. [ 29 ] The law is well settled regarding joint custody, as stated in Kaplanis and Kaplainis [4] there must be evidence of historical communication between the parents and appropriate communication between them. Joint custody should not be ordered in the hope that it will improve their communication. I do not find there is triable issue on sole versus joint custody. There is no evidence that the father could adduce that will change that outcome.

There is overwhelming evidence that these parties cannot and do not communicate on even the most mundane day to day issues facing their children. In view of the young ages of these children it is important that there is one parent that can make the decisions without constantly trying to obtain the consent of the other parent.

Prolonging this proceeding will only cause further legal expenses for the mother and the result after a trial is inevitable. [ 30 ] With respect to access, the access proposal made by the mother is reasonable and I do not see what evidence the father could adduce on this issue that would change the outcome. Access can in any event always be re-assessed as children get older and their needs change. I have also considered that subrule 2 requires a court to save expense and time and deal with cases in ways that are appropriate to its complexity and importance.

After a trial, I cannot fathom that the result would be anything but a sharing of the weekends and a specified holiday schedule. [ 31 ] With respect to the father’s obligation to pay child support, the father’s pleadings having been struck, based on the evidence before me, I find that income should be imputed at $60,000.00 and the father is therefore required to pay ongoing support of $892.00 as of January 1, 2013 and retroactive child support from September 1, 2011 to November 30, 2012, based on an income of $48,000.00 in the amount of $715.00 per month. I would give him a credit of $1,927.05.

Further based on the mother’s income of $35,000 for 2012 and the respondent imputed income of $60,000, he shall pay 63% of ongoing special expenses. He shall pay $1,275.00 in retroactive special expenses.

[ 32 ] I would add that I have considered that the father’s assertion that the mother agreed not to seek child support because he was in the process of bankruptcy may have resulted in a need to assess his credibility. However, I find this is not an issue that requires a trial when balancing the financial resources of the mother and the father’s non-payment of any child support since the temporary order was made on December 7, 2012.

As I will be providing the father with the ability to re-open the financial issues once all disclosure is provided I find that he is not prejudiced by this order. [ 33 ] Order as follows: 1. The Respondent’s pleading are struck for failure to comply with the disclosure order made December 7, 2012 2. The applicant shall be granted custody of the children, Layla Mason Blanchard born April 15, 2006 and Rowan Mason Blanchard born July 27, 2010 3. The respondent shall be granted access as follows: a.

Alternate weekends from Friday after school or daycare to Sunday evening at 7:00 pm to be extended on Monday at 7:00 pm on a statutory long weekend b. Alternate Thursdays from after school or daycare until Friday morning when the children will be returned to school or daycare c. The respondent will arrange for the children to attend any extracurricular activities, recitals or other special events while they are in his care; if he is unable to transport the children he shall notify the applicant and provide her the option of doing so. 4. The parties shall share the holidays in accordance with the

schedule attached. 5. As of January 1, 2013 the respondent shall pay to the applicant, in accordance with the child support guidelines and based on an imputed income of $60,000.00, child support of $892.00 per month. 6. The respondent pay retroactive child support to the applicant based on an imputed income of $48,000.00, $715.00 per month from September 1, 2011 to November 30, 2012 less a credit of $1,927.05. 7. The respondent pay to the applicant $1,275.00 as his share of retroactive special expenses. The respondent shall pay 65% of any ongoing special expenses.

The applicant shall present the respondent with proof of the cost of any such expenses and the respondent shall within 14 days pay his share; if the respondent fails to pay his share the applicant can submit the expenses to the Family Responsibility Office to be collected as child support. 8.

This order is made without prejudice to the respondent being permitted to bring a motion, on proper notice to the applicant, to seek to change his financial support obligations in this order, without the necessity of proving there has been a material change in his circumstances, upon providing proof to the court that he has complied with the outstanding disclosure order on December 7, 2012 and provided he has complied with his obligation to provide ongoing financial disclosure. 9.

The respondent shall provide to the applicant commencing June 30, 2013 and each year thereafter, a copy of his income tax return with all attachments and a copy of his Notice of Assessment or any Notice of Re-Assessment. 10. The applicant shall provide the respondent commencing June 30, 2013 and each year thereafter, a copy of her income tax return with all attachments and a copy of her Notice of Assessment or any Notice of Re-Assessment. 11. The respondent’s share of the special expenses shall be re-adjusted to take into consideration any tax credits.

Until changed on consent or by further court order the amount of child support payable shall remain as in this order. 12. For clarity, this order supersedes the support order of December 7, 2012. 13. Support Deduction Order to issue 14. If the applicant seeks costs, brief submissions with a bill of costs and any offer to settle to be attached to be served and filed within 30 days. Any response by the respondent to be served and filed within 2 weeks thereafter and any reply within 1 week. ___________________________ Justice R. Zisman DATE: May 17, 2013