) ) Liberatina Smith Applicant – v. –, 2013 ONSC 5811

CITATION : Smith v. Smith 2013 ONSC 5811 COURT FILE NO.: 109/09 DATE: 2013/07/03 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Liberatina Smith Applicant – and – Derek Smith Respondent ) ) ) ) ) ) ) ) ) Gary Joseph, for the Applicant Self-Represented ) ) ) HEARD: July 2, 2013 REASONS FOR JUDGMENT JUSTICE D.

FITZPATRICK [ 1 ] The Applicant brings a motion at the beginning of this trial seeking to have the Respondent’s pleadings struck on the basis of his failure to pay the full amount of the monthly spousal support ordered on a motion before Langdon J. on June 22, 2011. [ 2 ] The Applicant’s Notice of Motion seeks leave of the court to hear this motion, if necessary. There is, in my view, no leave required. The Applicant served the motion documents on June 20, 2013 thereby satisfying the timing set forth at Rule 14(11) of the Family Law Rules.

Apart from this timing component, there is no requirement for leave of the court to hear a motion simply because it is brought at the commencement of the trial. [ 3 ] To provide context to this motion, I note that there are no custody/access or other child care issues before me in this trial. The parties settled all such issues by Final Minutes of Settlement forming the basis of the Final Order of Bielby J. dated March 19, 2012. [ 4 ] By way of further context, I reiterate that the Applicant’s motion material was served on the Respondent on June 20, 2013.

The motion was brought before me at the commencement of this trial on July 2, 2013. By July 2, 2013, the Respondent had not served any responding materials. When I questioned the Respondent as to why he had not served a response, ultimately, the Respondent indicated he presumed the motion would not proceed since the trial was to start. The Respondent in his exchange with me acknowledged he was in error to make this assumption and that no prior judge had made a ruling that the motion would not proceed.

I reviewed the Notice of Motion with the Respondent to confirm he understood that the Applicant was seeking to strike his pleadings, which if granted would mean that the trial would proceed without the Respondent’s participation and input. The Respondent confirmed he understood the relief being sought and the consequences. Despite the failure of the Respondent to file materials to that point, I advised Applicant’s counsel that I wanted the Respondent to have the opportunity to provide an affidavit in response to the motion. The Respondent indicated he needed one hour to do so.

I allowed the Respondent two hours within which he did provide his sworn affidavit in response to the Applicant’s motion. The Applicant was also permitted to and did in fact provide a reply affidavit. [ 5 ] The Respondent does not deny that he is in arrears of spousal support as claimed by the Applicant in the amount of $10,032.00. He also does not deny that the arrears arise from his unilateral decision at March, 2012 to reduce the amount of his payment of spousal support from $802.00 monthly pursuant to Justice Langdon’s Order to $175.00 monthly.

The Respondent also acknowledges that he did not take any steps to appeal or vary the Order of Langdon J. [ 6 ] The starting point for the analysis on this motion is Rule 14(23) of the Family Law Rules, which provides as follows: 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 the 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.

[7] In reviewing the provisions of Rule 14(23), Quinn J. in Gordon v. Starr, 2007 CasrwellOnt 5438 (S.C.J.) offered thefollowing preliminary comments: a. Where a party has not complied with an order that was made on motion, relief under subrule 14(23) is mandatory, "unless the courtorders that this subrule does not apply." b. The onus is on the responding party to show, on a balance of probabilities, that subrule 14(23) is not applicable. [8] After reviewing the case before him, Justice Quinn in Gordon concluded as follows: “Subrule 14(23) should not be taken lightly. It means what it says.

It recognizes the offensiveness of allowing a party to obtain reliefwhile 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-roundride is the all-too-common casual approach to compliance with court orders. 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 ofmultiple orders to result in the dismissal of an application or a motion...

Non-compliance with one order is quite enough.” [9] Justice Quinn, not surprisingly, is not the first judge to speak to the obvious need of the court to ensure compliance withcourt orders and the rationale for enforcing compliance. Blair J. well articulated this issue and reasoning in Surgeoner v. Surgeoner,1991 CarswellOnt 465 (O.C.J (Gen. Div.)) where he stated: “No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its courts,orders at their whim because in their own particular view it is right to do so.

A society which countenances such conduct is a societytottering on the precipice of disorder and injustice. There is an undertow of bitterness and sense of betrayal [in the field of family law] which often threatens to drown the process and theparties themselves in a sea of anger and "self-rightness." In this environment it is all too easy for a spouse to believe that he or she"knows what is right," even after a matter has been determined by the Court, and to decide to ignore, disobey or defy that determination.

Those who choose to take this tack must know that it will not be tolerated.” [10] Finally, the court has also provided direction specifically with respect to the exercise of the court’s discretion to strikepleadings for non-compliance with a court order. It is clear that striking a pleadings and denying a party the right to participate in a trialis a drastic measure of last resort (see Ablett v. Horzempa, 2011 ONCA 633 , [2011] O.J. No. 4391 (Ont.C.A.) and Purcaru andPurcaru, 2010 ONCA 92 , [2010] O.J. No. 427 (Ont.C.A.)).

The Court of Appeal has noted that “this is particularly so in afamily law case where the resulting judgment may provide continuing obligations that can only be varied by proof of a change incircumstances. A change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thusperpetuating the injustice.” [11] In this case, the Respondent acknowledges that he made the decision to reduce his monthly spousal support paymentscontrary to Justice Langdon’s Order. The reduced payments commenced at March, 2012 and have continued to date.

In his affidavitsworn July 2, 2013, the Respondent simply states that “I am not able to pay that amount of money.” The Respondent offers no detailstowards establishing why he lacks the ability to pay. The only other comment offered by the Respondent in his affidavit is that he states“I am trying every day to better myself, earn as much as I can. I have increased my liabilities by purchasing inventory by borrowingmore money.

My not being able to pay has not been my choice.” The Respondent is self-employed in his own business. [12] Effectively, the Respondent argues that the business is not making enough money to provide him with the income he needs tosatisfy his obligations pursuant to Langdon J.’s order. This is not the first time that the Respondent has argued before this court that hisbusiness is failing and by relation that he is in difficult financial circumstances. The Respondent made this argument before Price J. onFebruary 1, 2010, Herold J. on May 27, 2010 and again before Langdon J. on June 21 and 22, 2011.

The response of the court to datehas been to reject the Respondent’s arguments of financial hardship. Langdon J. in his endorsement of June 22, 2011 went into a detailedanalysis of the Respondent’s financial circumstances concluding that the Respondent’s own actions belied his argument ofimpecuniosity, namely continuing to take on debt and otherwise invest monies into his business that his own valuator suggested was“worthless”. [13] Based on the evidence before me, I am not persuaded by the Respondent’s argument that he could not afford to pay thespousal support ordered by Langdon J.

First, I note again that the Respondent did not take any steps to appeal or vary Justice Langdon’sorder, which one would have thought he would if his financial circumstances were as dire as he suggests. Secondly, the Respondent hasput no evidence before me at all to support the bald assertions in his July 2, 2013 affidavit that he lacks the ability to pay. TheRespondent’s affidavit suggests the contrary where he confirms he had the ability to and did in fact borrow monies to buy inventory. Common sense dictates that credit cannot be obtained without demonstrating an ability to repay to the lender.

Third, the Respondent tomy knowledge was employed full time in his own business throughout the time he underpaid spousal support. Fourth, in the few minutesavailable to her, the Applicant provided a reply affidavit sworn July 2, 2013 with exhibits confirming that the Respondent received apayment from his business of $85,007.50 on January 22, 2013 and that she recently observed major renovations being undertaken to theRespondent’s home. [14] In his submissions, the Respondent acknowledged that he received the $85,007.50 payment.

The Respondent stated that therenovations to his home were being paid for by his father in the hope that the Respondent could rely on the improvements to obtainconventional bank financing at a lower interest rate than what he currently has for the home. Respecting this latter point, even if I accept

the Respondent’s father is paying for improvements, I am left with the Respondent being the owner of a home that he has been able to finance and who hopes to obtain other, better financing. Again, the point is that credit cannot be obtained without demonstrating an ability to repay to the lender. The fact that the Respondent has financing suggests that the Respondent does have payment abilities. [ 15 ] Based on the evidence before me and the lack of evidence, I do not accept the Respondent has no ability to satisfy the monthly spousal support order by Justice Langdon.

The Respondent received $85,000.00 at January, 2013 that he could have used to pay the spousal support outstanding but he did not. I find that the Respondent simply decided the lower amount of spousal support is what he will pay and has acted accordingly. [ 16 ] As stated above, the Applicant’s motion to strike is brought on the basis of the Respondent’s acknowledged failure to comply with the payment of the quantum of spousal support ordered by Langdon J.

However, in the process of determining whether I should exercise my discretion under Rule 14(23), I want to note that there have been 9 orders for financial disclosure in this case with the last at April 13, 2013. These orders relate in large part to the Respondent’s business finances and his related income. Every party is obligated to make full and ongoing financial disclosure quite apart from any court order. No family law case with financial issues can progress without disclosure.

The number of orders required in this case and the reality that the bulk of these orders focussed on disclosure to be made by the Respondent suggest strongly that the Respondent has been reluctant to meet his disclosure obligations except in the face of a court order with related expenses and stresses visited upon the Applicant. [ 17 ] Lastly, and again in the process of determining whether I should exercise my discretion under Rule 14(23), I want to note that the Respondent was in fact in arrears of support of $46,800.00 pursuant to a consent order when he was before Langdon J. on June 21 and 22, 2011.

Langdon J. ordered an immediate payment of $12,200.00 before he would allow the Respondent to bring his intended motion. Langdon J. ordered the balance of the arrears, namely $34,600.00 be secured against the matrimonial home to be paid on its sale.

In other words, the Respondent has a demonstrated history of not paying court ordered support and he already received the benefit of Justice Langdon’s discretion to defer payment of significant arrears to the sale of the matrimonial home. [ 18 ] Based on all of the above, I am of the view that Rule 14(23) should apply in this case and that the Respondent must be sanctioned for his failure to comply with the spousal support order of Langdon J. I agree with the court that striking of pleadings and denying the Respondent the opportunity to participate in this trial is a last resort.

I am not prepared to strike his pleadings. Instead, I will allow the Respondent to participate in this trial by being present and having the opportunity to challenge the Applicant’s case by cross- examination and any other means permitted to him. However, the Respondent shall not be allowed to bring forth any evidence on his own behalf unless he has paid the full amount of spousal support arrears owing to the Applicant, namely $10,032.00 by the end of the Applicant’s case. Justice D.

Fitzpatrick Released: July 3, 2013 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Liberatina Smith Applicant – and – Derek Smith Respondent ) ) ) ) ) ) ) ) ) Gary Joseph, for the Applicant Self-Represented ) ) ) HEARD: July 2, 2013

RE REASONS FOR JUDGMENT Justice D. Fitzpatrick Released: July 3, 2013