Mulik v. McFarlane, 2022 ONCJ 555

CITATION: Mulik v. McFarlane , 2022 ONCJ 555 DATE: November 30, 2022 COURT FILE NO. D41467/21 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) ) ) DIANA MALGORZATA MULIK ) MONIKA CURYK, for the APPLICANT ) APPLICANT ) - and - ) ) ) ) MICHAEL WESLEY MCFARLANE ) ) THE RESPONDENT, acting in person, with the assistance of duty counsel, ASHLEY ARROBAS RESPONDENT ) ) ) HEARD: NOVEMBER 28, 2022 JUSTICE S.B. SHERR ENDORSEMENT Part One – Introduction [ 1 ] The applicant (the mother) has brought a motion to strike the respondent’s (the father’

s) Answer/Claim. This is due to his breach of multiple court orders to: pay child support for the parties’ five-year-old child (the child), pay spousal support to the mother, provide financial disclosure and pay two costs orders made against him. [ 2 ] The father asks that the mother’s motion be dismissed. He proposed making monthly payments towards the costs orders and the outstanding child support arrears. He asked that he not be required to make payments towards his spousal support arrears. [ 3 ] The court read two affidavits filed by the mother. The father filed no material on the motion. He was permitted to consult with

duty counsel prior to the start of the motion. Both parties made submissions. [ 4 ] The issues on this motion are:

a) Should the court strike the father’s Answer/Claim?

b) If so, what terms, if any, should the court order for the father to reinstate his Answer/Claim?

c) If the court proceeds with a default hearing, what rights of participation, if any, should the father have? Part Two – Brief background [ 5 ] The mother is 37 years old. The father is 45 years old. [ 6 ] The parties have the one child together. The child primarily resides with the mother. [ 7 ] The parties are not married. [ 8 ] The parties met and began their relationship in September 2014.

They ended their relationship in September 2020. [ 9 ] On October 21, 2021, on consent, temporary without prejudice orders were made that the respondent have weekend parenting time with the child, and based on an annual income of $129,996, that he pay child support of $1,146 per month. [ 10 ] On February 23, 2022, after a contested motion, the court ordered the father to pay the mother $2,400 each month for spousal support, starting on March 1, 2022. See: Mulik v. McFarlane , 2022 ONCJ 67 . [ 11 ] On April 19, 2022, the court ordered the father to pay the mother $5,085 for her costs of the motion.

He was given permission to pay the costs order at $565 each month. However, if he was more than 30 days late in making any payment, the entire amount then owing would become due and payable. See: Mulik v. McFarlane , 2022 ONCJ 180 . [ 12 ] On July 7, 2022, the parties were ordered to serve and file by August 15, 2022, updated financial statements, to include their 2021 income tax returns and notices of assessment, proof of 2022 income from all sources, including pay stubs, and any record of employment if they had left a job.

The parties were also ordered to serve and file trial management conference briefs for the next court appearance. [ 13 ] The mother complied with this order. The father did not. [ 14 ] On September 2, 2022, the father was granted an adjournment to obtain new counsel and file the disclosure ordered on July 7, 2022. The father was cautioned that he must serve and file these documents, otherwise the mother could move to strike his Answer/Claim. He assured the court that the documents would be filed, whether or not he had counsel.

The case was adjourned to September 29, 2022. [ 15 ] The father did not attend court on September 29, 2022. He had filed none of the documentation ordered on July 7, 2022. The mother moved orally to strike his Answer/Claim. The court required the mother to serve and file a notice of motion seeking this relief. The court ordered that the father pay the mother’s costs fixed at $600, payable forthwith.

Part Three – Legal considerations [ 16 ] Subrule 1 (8) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules ) sets out that if a person fails to obey an order in a case, the court may make any order it considers necessary for a just 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, financialstatement, 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 courtorders otherwise;

f) An order postponing the trial or any other step in the case; and

g) On motion, a contempt order. [17] In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where noother remedy would suffice. See: Purcaru v. Purcaru, 2010 ONCA 92, at para. 47. [18] Where children’s interests are involved, courts should use utmost caution in striking pleadings because trial court needsparticipation of both parties and information that each can provide about best interests. See: King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, (C.A.); Haunert-Faga v.

Faga, (ONCA). [19] The decision- making framework for addressing a breach of a financial disclosure order was set out in paragraphs 44 to 49 ofMullin v. Sherlock, 2018 ONCA 1063 as follows: Decision-making Framework [44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfiedthat there has been non-compliance with the court order. [45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8).

In assessing the most appropriateremedy, a judge should consider the following factors:
the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance fornon-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
the extensiveness of existing disclosure;
the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
any other relevant factors. [46] Having considered these factors, the judge will then determine the best remedy.

The orders identified in Rule 1(8) are notexclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverseinference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequentlyrely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may beappropriate especially in a complex case, but an adjournment should not be considered to be automatic.

Fully compliant disclosure is theexpectation, not the exception. [47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsectionprovides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case inany way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party indefault.

In making this determination, consideration should be given to whether the consequence is responsive to the breach and whetherit achieves a just outcome. [48] If the judge decides to strike, Rule 1(8)(

c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongststriking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or

any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motionto change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what isbeing struck. [49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as statedby Lang J.A. in Purcaru, at para. 50, are “entitled to deference on appeal when exercised on proper principles.

The exercise of discretionwill be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.” [20] In Roberts v. Roberts, 2015 ONCA 450, the court stated that the most basic obligation in family law is the duty to disclosefinancial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress ofthe 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. [21] Justice Robert Spence set out the following three-step process when determining whether to strike a pleading for a breach of anorder (not just a financial disclosure order) in paragraph 64 of Ferguson v. Charlton, 2008 ONCJ 1: [64] ... First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) orsubrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or anorder “made on motion” [subrule 14(23)].

Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its 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 theforegoing case law suggests that this discretion will only be granted in exceptional circumstances.

In my view, the court’s decisionwhether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course ofthe litigation and, more specifically, the conduct of the non-complying party. Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left witha very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23). [22] It would be superfluous to order that a party comply with an existing order.

To order compliance does not add to or take awayfrom the initial order. If there has been a breach, the appropriate step is to seek a remedy under subrule 1(8). See: Varcoe v. Varcoe,2014 ONSC 328. [23] In Costabile v. Costabile, (OCA), the Ontario Court of Appeal found that a motions court’s decision to strikepleadings with the right to move to reinstate the pleadings on conditions was a sensible solution. [24] In exercising its discretion under subrule 1 (8), the court should consider the primary purpose of the Family Law Rules – to dealwith cases justly.

Part Four – Positions of the parties [25] The mother seeks an order striking the father’s Answer/Claim. She proposed that the father may reinstate his Answer/Claim, byway of Form 14B motion, on notice, if he did the following by December 31, 2022:

a) Served and filed the documentation ordered on July 7, 2022, together with the name and address of his current employer.

b) Paid outstanding costs of $5,685.

c) Paid $5,000 towards the child support arrears. [26] The mother also asked that the father be required to keep his support payments in good standing and pay $1,500 each month

towards support arrears, starting on January 1, 2023. [ 27 ] The father asks the court to dismiss the mother’s motion. He proposed to pay $125 each week towards the outstanding costs order and $450 each week for child support. He did not want to pay any spousal support. [ 28 ] The father claimed that his annual income has dropped by $30,000 since the support orders were made. He provided no evidence supporting this claim. [ 29 ] The father blamed his prior counsel for not delivering the financial disclosure ordered. This made little sense.

The disclosure was ordered on July 7, 2022, when the father was self-represented. He was warned about the consequences of non-compliance at court on September 2, 2022. He was served with this motion and still did not comply with the order. This was his responsibility, not his prior lawyer’s. Part Five – Analysis [ 30 ] It is not disputed that the father has breached several court orders.

These are triggering events for the court to consider the remedies set out in subrule 1 (8). [ 31 ] As of November 2, 2022, the father was $6,537.26 in arrears of the child support order. [ 32 ] The father has paid nothing towards the spousal support order. He is now $21,600 in arrears. [ 33 ] The father has paid nothing towards the two costs orders. $5,685 remains outstanding. [ 34 ] The father has filed none of the disclosure ordered on July 7, 2022. The court has no current evidence of his income and expenses.

An adverse inference is drawn against him. [ 35 ] The temporary orders were premised on the father earning annual income of $129,996. There is no basis to find that his income is otherwise today. Based on this income, the father should have been making all the support payments ordered. He should have also made the monthly payments towards the costs order permitted in that order. [ 36 ] The father did not provide a justifiable excuse for his non-compliance with the court orders.

Instead of proposing to pay something towards spousal support arrears, he argued again at the motion that he should not have to pay any spousal support to the mother. [ 37 ] The father has been given multiple opportunities to comply with the court orders and has made little effort to do so, even when served with the motion to strike his Answer/Claim. [ 38 ] It is very apparent that the father has no intention of voluntarily complying with orders he does not agree with.

He is openly defiant of them. [ 39 ] The court finds that the father’s non-compliance with the court orders is deliberate. [ 40 ] The next step is to determine whether it is appropriate for the court to exercise its discretion under subrule 1 (8) to strike the father’s Answer/Claim.

[ 41 ] This is not a difficult determination. [ 42 ] The father’s conduct has been abysmal. He has deliberately caused the mother to incur significant legal fees while he has delayed the case, refused to pay costs orders, has not complied with disclosure orders and has placed her and the child in difficult financial circumstances by refusing to pay the support ordered. [ 43 ] The court has considered that it must exercise great caution prior to striking an Answer/Claim on parenting issues. However, in this case, the father’s breach of orders is egregious.

It would be unjust and contrary to the administration of justice to permit the father to continue to defy orders, while requiring the mother to further litigate this matter. [ 44 ] The father has weekend parenting time with the child. The mother has always facilitated this relationship.

Striking the father’s Answer/Claim should not adversely affect that relationship. [ 45 ] The father’s failure to pay the two costs orders informs the court that just ordering further costs against him will not correct his behaviour. [ 46 ] It is time for the father to demonstrate to the court that he will respect court orders and is serious about proceeding with this case in good faith. He will be given the opportunity to do this as it always the court’s preference to have both parents participate. [ 47 ] The court will follow the approach taken in Costabile , supra .

It will strike the father’s Answer/Claim but will give him the opportunity to reinstate it upon the performance of conditions. [ 48 ] The terms sought by the mother for the father to reinstate his Answer/Claim are generous, and in the opinion of the court, too generous. It is important to send a clear message to the father that the court expects him to comply with its spousal support order.

He cannot ignore it because he doesn’t agree with it. [ 49 ] The court will require the father to make a partial payment towards the spousal support arrears as a term of reinstating his Answer/Claim, in addition to the terms sought by the mother. The father will also be ordered to pay all present child support arrears, not just the $5,000 payment requested by the mother. [ 50 ] In order to reinstate his Answer/Claim, the father shall be required to serve and file by January 16, 2023:

a) A sworn financial statement.

b) His complete 2021 income tax returns, with all attachments and schedules.

c) His 2021 notice of assessment.

d) Any record of employment in 2022.

e) The name and address of his employer

f) All documentary evidence of his 2022 income from all sources. This includes pay stubs.

[ 51 ] The father shall also be required to provide proof by January 16, 2022, that he has paid: a) $6,500 towards the child support appears. b) $5,685 towards outstanding costs. c) $5,000 towards the spousal support appears (this is only 23% of the current arrears). [ 52 ] The court finds that the father has the ability to pay these amounts – particularly since he has not been paying the support ordered on an ongoing basis. [ 53 ] If the father makes these payments, he may pay the balance of support arrears at the rate of $1,500 each month, starting on February 1, 2023.

These payments shall first be applied to any child support arrears. If the father does not make these payments, the mother will need to bring another motion to strike his Answer/Claim, on notice. [ 54 ] The father has until January 16, 2023, to bring a Form 14B motion, on notice to the mother, to reinstate his Answer/Claim. He will be required to prove that he has completely complied with the terms of this order for the court to make that order.

Part Six – The father’s participation at trial if the Answer/Claim is not reinstated [ 55 ] Pursuant to subrule 1 (8.4) the court has discretion to determine to what extent the father may participate in this case, even if his Answer/Claim has been struck.

The court can also set a date for an uncontested trial of the case. [ 56 ] The court heard submissions from the parties about what rights of participation the father should have at the default hearing if his Answer/Claim is struck. [ 57 ] The mother’s position is that the father should not be able to participate at the default hearing on the financial issues and should be able to participate fully on the parenting issues. The father’s position is that he should be able to fully participate on all issues. [ 58 ] The court does not agree with either position.

The father should not be entitled to fully participate on the parenting issues if he does not reinstate his Answer/Claim. The mother should not be put to this cost. There would also be no consequence to him of having struck his Answer/Claim. [ 59 ] The court finds that it is just in these circumstances to permit the father to have limited rights of participation at the default hearing on the parenting issues. This will include the right to present a parenting plan, file an affidavit and to make closing submissions. He will not be permitted to call evidence or to cross-examine the mother or her witnesses.

These rights of participation, that will be set out in more detail in the court order, will assist the court in determining the child’s best interests. [ 60 ] The court also finds it is just in these circumstances to permit the father to have some, but very limited rights of participation at the default hearing on the financial issues. This will include the right to file financial disclosure and to make closing submissions.

These rights of participation will be set out in more detail in the court order and will provide the court with evidence to make a more accurate determination of the father’s support obligations. [ 61 ] The hearing date is set for March 30, 2023, at 9:30 a.m. It could not be set earlier as the mother’s counsel is going to be out of the country. It will be in person and is scheduled for a half-day. If the father reinstates his Answer/Claim, that appearance will be

converted into a trial management conference, for one hour, and will be conducted by zoom videoconference. Part Seven – Conclusion [ 62 ] An order shall go on the following terms:

a) The father’s Answer/Claim is struck pursuant to subrule 1 (8).

b) The father shall have until January 16, 2023 to move to reinstate his Answer/Claim by Form 14B, on notice to the mother. His Answer/Claim will only be reinstated if he has complied with the following conditions: 1. He has served and filed:

i) His sworn financial statement. ii) His complete 2021 income tax return, with all attachments and schedules. iii) His 2021 notice of assessment. iv) Any record of employment in 2022.

v) The name and address of his employer. vi) All documentary evidence of his 2022 income from all sources. This includes pay stubs. 2. And he provides proof by January 16, 2023, that he has paid: i) $6,500 towards the child support arrears to the Family Responsibility Office. ii) $5,685 towards outstanding costs – to be delivered to the mother’s counsel by certified cheque or money order. iii) $5,000 towards the spousal support arrears to the Family Responsibility Office.

c) If the father complies with these conditions, he shall be permitted to pay the balance of the support arrears at the rate of $1,500 each month, starting on February 1, 2023. These payments shall first be applied to any child support arrears.

d) If the father does not reinstate his Answer/Claim, a default hearing will be held on March 30, 2023, starting at 9:30 a.m. It shall be in person and will be scheduled for a half-day. The father shall be permitted to participate at that hearing as follows:

1. Parenting issues

i) The father is to serve and file a draft order by February 21, 2023, setting out his proposed parenting plan for the child. ii) The father may serve and file an affidavit by February 21, 2023, not exceeding 10 pages, double-spaced and 12-point font, setting out why he feels his proposed parenting plan is in the child’s best interests. iii) The father will not be entitled to call further evidence at the default hearing or to cross-examine the mother or any of her witnesses. iv) The mother may have up to 30 minutes to cross-examine the father on his affidavit at the default hearing. 2. Financial issues

i) The father may serve and file by February 21, 2023, an updated sworn financial statement, with all attachments required by the Family Law Rules . ii) The father will not be entitled to call further evidence at the default hearing or cross-examine the mother or any of her witnesses. 3. The father may make closing submissions of up to 30 minutes on the evidence presented.

e) The mother shall serve and file by March 3, 2023, for the default hearing, an updated sworn financial statement, with all attachments required by the Family Law Rules and any affidavits she intends to rely upon at the hearing.

f) If the father reinstates his Answer/Claim, the March 30, 2023 appearance will be converted into a trial management conference, for one hour, by zoom videoconference. trial management conference briefs are to be served and filed.

g) Any documents filed are to be uploaded to Caselines. [ 63 ] The mother is entitled to her costs of this motion. If she wishes the court to order costs, she shall serve and file her written costs submissions by December 14, 2022. The father will then have until December 30, 2022, to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse. Released: November 30, 2022 _____________________ Justice S.B. Sherr